Himachal Pradesh High Court
Nasir Mohammad vs State Of H.P on 15 March, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P. (M) No. 138 of 2019 Reserved on: 7.3.2019.
.
Date of Decision: 15.3.2019
Nasir Mohammad .....Petitioner.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
For the Petitioner:
r to
Whether approved for reporting? Yes.
Mr. Kulbhushan
Advocate.
Khajuria,
For the Respondent: Mr. Hemant Vaid, Addl.A.G with
Mr. Yudhveer Singh Thakur and
Mr. Vikrant Chandel, Deputy
Advocates General.
Sureshwar Thakur, Judge
The instant petition has been filed by the bail applicant, under, Section 439 Cr. P.C., wherethrough he seeks, the indulgence, of his being ordered to be released from judicial custody, whereat, he stands extantly lodged, for, his allegedly committing offences, punishable under Sections 20,25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "ND &PS Act), in case FIR No. 273 ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 2 of 2016 dated 16.12.2016, registered with Police Station, Sadar, District Chamba.
2. The instant petition, warrants, an, adjudication .
being meted, visavis, (a) the aggregate or the total weight, of, the banned narcotic substance, rather comprising the apposite parameter, for, making a further determination, qua, thereupon, the purported recovery(ies), from, the alleged conscious and exclusive possession of the petitioner, being amenable, for, being categorized, as, (a) commercial quantity or more than commercial quantity thereof, (b) AND/ or the aggregate or the gross weight, of, the entire contents, as, carried in the recovered psychotropic substance, hence constituting the reckonable parameter, for making the apt determination, qua effectuation, of recovery(ies) thereof, from, the exclusive, and, conscious possession, of, the accused, being, hence construable to be (i) small quantity or (ii) more than small quantity or (iii)commercial quantity thereof.
3. In the instant case, registered against petitioner herein, the FSL concerned (i) qua 2 kg. 10 gram of charas, allegedly recovered, from, the exclusive and conscious ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 3 possession of petitioner herein, has opined, that (i) the quantity, of, the purified content, of, the aforesaid contraband as found, in the exhibit, carrying a weight, of, 18.76% hence, .
primafacie, the pure content thereof, of, the aforesaid narcotic substance, as extracted from the bulk thereof, falls within, domain, of, small quantum of, the aforesaid narcotic substance, as extracted from the bulk thereof, rather falls within, domain, of, greater than small quantity and less than, the commercial quality thereof, (ii) yet the aggregate weight, of, the narcotic substance(s), as, recovered from the exclusive possession of the accused, without segregating therefrom, the pure contents, thereof renders, the apposite haul, to fall, within, the domain, of it being construable to be categorized, as, more than commercial quantity (iii) thereupon reiteratedly also an adjudication, is to be meted qua any of the apt pure contents thereof, hence, comprising the apt parameter(s).
4. Mr. Kulbhushan Khajuria, learned counsel appearing, for the petitioner, contends, that, with hence charas, occurring at serial No.23 of, the table appended, with, the ND& PS Act, and, with a clear, and, candid prescription, ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 4 borne therein, qua 100g, being specified, as, small quantity thereof, (i) hence, the aggregate quantum, only of, the aforesaid pure contents, as, borne in the seized narcotic .
substances, alone, being construable, to be the apt reckonable principle, for making the further determination, visavis, the narcotic substances recovered, from the exclusive and conscious possession, of the accused, dehors, the total bulk of the afore contraband, hence, falling or not falling, within the domain, of, small or more than small or commercial quantity thereof, (ii) specifically, when the table, with, clear explicitly hence refers to charas, and, omits to make any explicit reference therein, visavis, the other part of the narcotic substance/neutral substance, carried in the seized contraband, rather, being also reckonable, nor, with, the total or aggregate weight, whereof, of, the entire milligram, carried in the seized contraband, being mandated to comprise, the justifiable principle, hence, for making, the apt reckoning qua, the entire seizure hence falling within the domain of small quantity or more than small or commercial quantity thereof.
::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 55. In making the aforesaid submissions, the learned counsel, appearing for the petitioner, has placed reliance, upon, the verdict pronounced, by, the Hon'ble Apex Court, in a case .
titled as E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau, reported in (2008)5 SCC 161, the relevant paragraph No.19 whereof stand extracted hereinafter: "16. On going through Amarsingh case (2005)7 SCC 550, we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The blackcoloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as `opium derivative which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 6 substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that .
when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration. "
(p.170171)
(a) wherein an affirmative view has been pronounced, visavis any narcotic drug, and, psychotropic substance(s), upon, theirs being found rather mixed with one or more neutral substance(s), thereupon, for the purpose of imposition of punishment, only the weight, of, pure contents' of the narcotic drug, and, the weight, only of, the psychotropic substance, being the alone reckonable besides the apt parameter(s).
6. The learned counsel appearing for the petitioner also placed reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled, as, Mohd. Sahabuddin and another vs. State of Assam, reported in (2012) 13 SCC 491, ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 7 relevant paragraph(s) No.11 and 12 whereof, stand extracted hereinafter: "11. The submission of the learned counsel for the .
appellants 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 permissible 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 conditions, 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 undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means 'contributing to cure of disease'.
In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported 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 as to for what purpose such a huge quantity of Schedule 'H' drug containing narcotic substance was being transported and that too stealthily, it cannot be simply presumed that such transportation was for therapeutic practice as ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 8 mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for therapeutic practice is not satisfied then in the event of the entire 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 N.D.P.S. Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be satisfied under the above referred 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."
(p.495496) (A) wherein it stands expostulated, qua, for the bail applicant concerned, deriving, the benefits, of, notifications respectively issued, on 14.11.1985, and, on 29.1.1993, it being incumbent, for them to establish (a) the twin conditions qua the contents of narcotic substances imperatively, not, exceeding 100 mg per dose unit, (b) and with a concentration of, not, more than 2.5% in undivided preparation, and, apart therefrom, the other condition, of, it being evidently transported, only for therapeutic practice i.e. for contributing to cure of disease, ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 9 also, necessitating, its, imperative satisfaction. However, the reliance placed thereupon, is inapt, for the reasons (i) the counsel not bearing in mind the trite factual matrix, as, .
appertaining to the case supra, as, occurs in preceding paragraph No.10 thereof, wherein, there is a trite display, of the apt recovery, effectuated, from, the accused therein, being visavis bottles of Phensedyle cough syrup, whereinwithin existed, hence, 183.15 to 189.85 mg of codeine phosphate, and, each 100 ml bottle of Recodex cough syrup, also, contained 182.73 mg of codeine phosphate, (ii) AND obviously, even after, multiplying the aforesaid quantum of codeine phosphate, as, carried in each 100 ml., bottle(s) of Phensedyle cough syrup, and, of Phensedyl, with the respective numerical strength, of, the respective cache, of, bottles, thereupon, also the level of the banned narcotic drug, namely, codeine phosphate, being, in a quantum, whereupon, obviously the carrying thereof, of, even pure contents of codeine phosphate, as, borne in the cache, of, seized bottles, of, Phensedyle cough syrup, and, of Recodex cough syrup, is rendered hence, to fall within the ambit, of, commercial quantity thereof, (iii) hence, in succeeding ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 10 paragraph No.12, the Hon'ble Apex Court, had propounded that, yet, with a notification of 14.11.1985, and, of 29.1.1993, enjoining upon the accused, to satisfy the aforesaid twin .
conditions, and, the material thereat also evidently, bearing out, qua its being transported, for therapeutic practice, thereupon, alone all the benefit(s) thereof, being accruable, vis avis, the accused. Contrarily, obviously the level or extent or quantum, of the pure content, of the banned narcotic drug(s), namely, codeine phosphate, as, carried, in each, of the seized bottles, after, segregating therefrom hence the contents of the other part of the mixture, borne in each of the bottle(s), renders, the, apt quantum thereof, to, fall within small quantity thereof, (iv) thereupon, hence the ratio decidendi, propounded, in the aforesaid case, being unavailable for bestowal upon the accused herein, (v) more so when neither the notifications alluded therein, are, espoused hereat, for deriving, the, apposite benefits thereof, nor the twin conditions embodied, therein, are, hereat propagated nor when the extant cache, is, espoused, to be transported, only for therapeutic use, rather is a narcotic drug, than a psychotropic ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 11 substance, as was thereat. Consequently, reliance upon the case supra, is, inaptly placed. Contrarily, the factual scenario prevailing hereat, is, covered by the pronouncement, made, in .
E. Micheal's case (supra), given the afore verdict answering with aplomb the conundrum qua (a) upon any narcotic drug or psychotropic substance being found standing mixed with one or more neutral substance/s, thereupon for the purpose of imposition of punishment, only the pure content of the narcotic drug or psychotropic substance, rather comprising the apt reckonable parameter, (b) AND when hereat, the, resin content is the apposite pure content of the seized narcotic substance substance, thereupon the afore pure content, is, the apt reckonable parameter, for granting bail.
7. The learned counsel appearing for the petitioner also places reliance, upon, a judgment of the Hon'ble Apex Court, rendered in a case titled, as, Harjit Singh vs. State of Punjab, (2011)4 SCC 441, (i) wherein, visavis, the seizure of 7.10 kg of opium, as, effectuated, from, the exclusive and conscious possession of the accused therein, and, with its being opined, to contain 0.8% morphine, it standing expostulated qua ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 12 hence the entire mass or gross weight, of the opium rather being the apt reckoner, dehors the percentum of morphine, occurring therein (ii) It has also been expostulated, therein .
that the entire quantity or the gross weight, of the entire ill substance, being rather recknonable, for making the further apt determination, qua whether the recovered substance, hence falling within small quantity or greater than small quantity or commercial quantity thereof. The apt paragraph No.21 of Harjit Singh's case (supra), stands extracted hereinafter: "21. In the instant case, the material recovered from the appellant was opium. It was of a commercial quantity and could not have been for personal consumption of the appellant. Thus the appellant being in possession of the contraband substance had violated the provisions of Section 8 of the NDPS Act and was rightly convicted under Section 1018(b) of the NDPS Act. The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. For the purpose of ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 13 imposition of punishment if the quantity of morphine in opium is taken as a decisive factor, Entry No.92 becomes totally redundant. Thus, as the case falls under clause (a) of Section 2(xv), no further consideration is required on the issue.
.
More so, opium derivatives have to be dealt with under Entry No.93, so in case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity."
(iii) Though evidently, the seized contraband i.e. opium, did, contain some per centum of morphine, yet therein, it, has also been propounded, that the existence, of, some per centum of morphine therein, being an irrelevant factor, for determining qua hence the substance or contraband seized, from, the exclusive and conscious possession of the accused therein, being construable to be opium, rather the entire quantum, of, the narcotic drug or substance, as, recovered from the exclusive and conscious possession of the accused therein, being the solitary apt determinant, (iv) thereupon also the aforesaid, expostulation, does not give any leverage to the espousal, of, the counsel for the bail applicant, rather contrarily support ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 14 therefrom, is, derived by the State, for contending that the gross weight or the aggregate, of the entire contraband, borne in the apt narcotic substances, as recovered, from the .
conscious and exclusive possession, of the accused, being, the only recknonable factor, for making the apt determination.
8. The learned Addl. Advocate General submits, that with notification bearing S.O.2941(E) of 18.11.2009 whereunder Note 4 in the table, at the end of Note 3, is added,
(i) with a prescription therein, qua the quantum or the level of presence, of, the pure banned narcotic drug, in, the seized cache, being not the singular, reckonable parameter, for making an apt determination, of, quantification thereof, thereupon, the espousal addressed before this Court, by the counsel for the petitioners, hence, rather warranting rejection.
The aforesaid submission, is further anvilled, upon, a verdict pronounced by the Hon'ble Apex Court in Cr. Appeal No. 722 of 2017, titled as Hira Singh & Anr. vs. Union of India, decided on 3.7.2017, whereunder, the hereinafter extracted questions, stand referred, for determination, by a larger Bench of the Hon'ble Apex Court, and, more particularly with the apt ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 15 reference, appertaining, visavis, the legal expostulation settled by the Hon'ble Apex Court in E. Micheal Raj's case (supra), being or not being per incuriam, visavis, the .
notification of 19.10.2001, rather hence awaiting rendition thereon, thereupon, the benefits of all the trite expostulations, borne in, E. Micheal Raj's Case (supra) being not affordable, to the bail petitioners, "(a) Whether the decision in this Court in E. Micheal Raj (supra) requires reconsideration having omitted to take note of entry No.239 and Note 2(two) of the notification dated 19.10.2001 as also the interplay of other provisions of the Act with Section 21?
(b) Does the impugned notification issued by the Central Government entail the redefining the parameters for constituting an offence and more particularly for awarding punishment?
(c) Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified narcotic drug?
(d) Whether Section 21 of the Act is a stand alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation" containing any manufactured drug?
::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 16however, the aforesaid submission is rejected, for the reasons,
(i) qua nowat, with, the larger Bench of the Hon'ble Apex Court, not making any pronouncement, upon the afore .
extracted questions, as, referred thereto, (ii) AND in aftermath, with, the vires of the apt notification standing not upheld nor reversed nor the verdict pronounced by the Hon'ble Apex Court, in, E. Micheal Raj's case (supra), with, the afore applied clear expostulations (supra) occurring standing neither quashed nor set aside, thereupon, dehors any r therein, apt nonrendition thereon , it is not deemed just, fit and appropriate, to curtail the liberty of the bail petitioner.
Paramountly also any benefit, strived to be derived by the prosecution, from, Harjit Singh"s case (supra) cannot prevail, given (a) the reference to the larger Bench, rather appertaining to not to the, afore verdict, rather it appertaining, visàvis, the premier initial verdict rendered in E. Michael Raj's case (supra), verdict whereof is directly attractable, visàvis, the controversy at hand, (b) thereupon, till the afore referred apt reference made to a larger Bench, visàvis the efficacy of the pronouncement, occurring in E. Michael Raj's case, stands ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 17 answered, and, whereunder hence the verdict rendered in E.Michael Raj's case hence is annulled, (c) thereupto the clout and efficacy, of the verdict rendered in E.Michael Raj's case .
remains intact, (d) AND also only the afore verdicts' efficacy, is to be nowat tested, than, of Harjit Singh's case (supra), efficacy whereof has remained unreferred to the larger Bench,
(e) and till the comparative efficacies of both, the afore verdicts are determined by the larger Bench, hence it is deemed fit to nowat follow the decision in E.Michael Raj's case (supra), (f) even otherwise, the trite factum of pure content of the relevant narcotic drug/substance being or not, the relevant apt reckonable parameter, when stands earlier decided in E.Michael Raj's case, by a Bench strength holding a numerical strength coequal, to the one which rendered, the, subsequent verdict in Harjit Singh's case (supra) (g) and when the afore earlier pronouncement, as made, visàvis the controversy at hand, may primafacie, on the principle of propriety be binding on the subsequent Bench of the Hon'ble Apex Court, holding a Bench strength, coequal to the earlier Bench strength, which rendered a verdict, in, Michael Raj's case ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 18 (supra), (h) thereupon also till the comparative merit of both the verdicts (supra) are evaluated by a larger Bench, it is deemed fit to follow the initial premier verdict rendered in E. .
Michael Raj's case (supra).
9. At this stage, the learned Additional Advocate General has placed on record, an order rendered upon Cr.M.P(M) No. 1145 of 2014, by the Hon'ble Division Bench of this Court, upon a reference made to it, by the learned Single Judge, with respect, to the comparative applicability, of, the verdict(s), made, in E. Micheal Raj's case (supra), and, in Harjit Singh's Case, whereon, the Division Bench of this Court, has rather assigned merit, to the pronouncement made, in, Harjit Singh's case. However, the aforesaid verdict is distinguishable, and, may not be applicable hereat, given circumstances since then up to now, rather begetting an immense change, (i) change whereof stands comprised, in, the Hon'ble Apex Court in Hira Singh case, making, the aforesaid reference, visavis, a larger Bench, (ii) wherein only the validity of the pronouncement, made in E Micheal"s Case, stands referred for determination, to a larger Bench. Since ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 19 the reference made by the Hon'ble Apex Court visavis, the conundrum, wherewith this Court is beset, primafacie prevails, upon, the earlier therewith pronouncement made .
upon an apposite reference, by the Division Bench of this Court, (iii) thereupon, before validating the adjudication made by the Division Bench of this Court, it is deemed fit, to, await rendition, of, an order by the larger Bench, of the Hon'ble Apex Court, upon, a reference made visavis it, only, visavis, the binding effect, of, E Micheal Raj's case.
10. The learned Additional Advocate General, has placed on record an order/judgment, rendered by a coordinate Bench of this Court, in Cr.M.P(M) No. 1751 of 2018, wherein, a view disconcurrent visavis the view taken by this Court has been taken. The reason which prevailed upon the coordinate Bench of this Court, to, take a view different from the one earlier taken by this Court, is, anvilled upon the factum that the import and relevance of the reference, made by the larger bench of the Hon'ble Apex Court in case Hira Singh & Anr. vs. Union of India (supra) rather not eroding the effect of the judgment rendered by a full Bench of this Court in State of ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 20 H.P. vs Mehboob Khan, 2013 (3), Shimla 12 Law Reporter (FB) 1834, and, also not diluting the rigor of a verdict pronounced by the Hon'ble Apex Court, in, Harjit Singh's case (supra) .
11. The further reason assigned by the coordinate Bench of this Court, to, not accept the reasonings' made by this Court, while earlier affording the facility of bail to various bail applicants, who, motioned this Court, for indulgence thereof is
(a) anvilled upon the reference made by the Hon'ble Apex Court in Hira Singh's case (supra) wherein, the amended notification No. S.O.1055(E) of 19.10.2001 wherethrough Note 4 was added in the end of Note 3, and, wherein the validity of the pronouncement made in E Michael Raj's Case (supra) was referred hence for consideration to a larger Bench of the Hon'ble Apex Court, (b) hence given E.Micheal Raj's case (supra) rather omitting to take note of entry No. 239, and, also of Note 2, besides, of notification of 19.10.2001, as, also of the interplay of the other provisions of the Act with Section 21, (c) also stands, though, limited to the validity of the pronouncement made in E Michael Raj's Case (supra), yet ipso facto, hence the afore reference not perse invalidating, the, ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 21 judgment rendered by the Hon'ble Apex Court in Harjit Singh's case (supra) (d) preeminently also, thereupon the afore judgment, rendered in Harjit Singh's case (supra), upto, the .
stage of its being disturbed or set aside by a subsequent thereto verdict, hence, rendered by a Bench of the Hon'ble Apex Court larger in numerical strength, visavis, the Bench of the Hon'ble Apex Court, hence, rendering, the, earlier thereto verdict, recorded in E. Michael Raj's case, (e) rather, thereupto the verdict pronounced in Harjit Singh's case (supra) holding clout, and, command, (f) the verdict earlier made by this Court, while, making a vehement dependence, upon, E Micheal Raj's Case (supra), and, when a reference in Hira Singh's Case (supra), is, made to a larger Bench of the Hon'ble Apex Court, rather only in respect of its validity, and, with E Michael Raj case (supra) hence, not, standing attracted, visa vis, charas, (g) given, the contraband recovered in E Micheal Raj's case (supra) being Heroin, and, not charas, (h) in Mehboob Khan's case (supra), an unambiguous verdict standing rendered that, unless, the presence of, a, material substance is established, hence, the entire mass of charas ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 22 being construed to be contraband, (i) however, for the reasons' to be assigned hereinafter, all the afore reasons', cannot come to be accepted by this Court, preeminently with the Punjab and .
Haryana High Court in case CRMM350802018 titled, as Rajvir Singh @ Raju vs State of Punjab, rather taking a view holding concurrence with the view earlier taken by this Court,
(j) and, obviously hence the view disconcurrent taken by a co ordinate Bench of this Court in Cr.M.P(M) No. 1751 of 2018, visavis, the verdict earlier made, by this Court, rather cannot be accepted by this Court, (k) a bare reading of the definition of charas encapsulated in Section 2 (iii) (a) of the ND & PS Act, with, amplifying clarity, makes a vivid echoing qua it being hence separated resin, in whatever form, whether crude or purified, (l) and also with the afore clause defining with explicitly, and also, making a statutory contemplation qua concentrated preparation, and, resin known as Hashish oil or liquid Hashish, all falling, within the statutory definition of charas, (m) thereupon, the separated resin or resinous substance, is, the solitary factor or substance being hence reckonable for hence it, falling or not falling within or outside ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 23 the afore domain, of, the statutory definition of charas, (n) and, also concomitantly rather only the weight thereof, is, the apt reckonable factor, for, determining qua its constituting small, .
intermediate or commercial quantity thereof.
12. Further more the effect, if any, of the notification holding prescription, if any, contrary to the afore definition of charas, is, the apt conundrum, borne in Hira Lal's Case (supra), and, is referred for adjudication to a larger Bench, of, the Hon'ble Apex Court, and, obviously unless an adjudication is meted thereon, also, specifically visavis its vires, thereupto this Court is of the firm view that the indulgence of bail, cannot be refused, to the bail applicant, given, E Micheal's case (supra) rather holding both sway and clout.
13. Be that as it may, the view taken by the coordinate Bench of this Court different than the earlier view taken by this Court, is, unacceptable to this Court, as, it is anvilled, upon, the principle contemplated in Mehboob Khan's case, principle whereof, is, in nutshell, stands echoed in, the, judgment, of, the coordinate Bench of this Court, relevant paragraph whereof stands extracted hereinafter: ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 24 " 25. On the issue under consideration, in Mehboob Khan's case, the full Bench of this High Court, keeping in view the definition of 'Charas' in unambiguous terms, has held that unless presence of material substance is established, entire mass of charas shall be considered as .
contraband."
(a) when a reading thereof unveils, that unless, the presence of material substance is established, thereupon the entire mass or bulk is to be construed to be charas. However, when hereat, the, report of the FSL concerned, rather underscores the quantum, of, resinous substance, as carried in the bulk allegedly, as, recovered from the conscious and exclusive possession of the accused, and, when the afore resinous substance, is the solitary, statutorily recoknable factor, for construing whether is charas, and, also when weight thereof is concomitantly, hence the, singular recoknable parameter, for determining qua its falling within or outside hence the apt small, intermediate or commercial quantity thereof, (b) thereupon in the instant case, reliance, if any, upon, a verdict in Mehboob Khan's case (supra), would be misplaced, and, this Court would not proceed to accept the view, on anvil thereof, as, taken by the coordinate Bench of this Court.
::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 2514. Even though, the learned Additional Advocate General, has contended, that clause (c) of Section 2(iii) of the ND & PS Act, enables him to contend, that any neutral .
substance, as, coagulated alongwith the bulk of resin being also construable, to be a part of resinous substance, and, also hence being construable, to be charas, and, he further contends that the afore propagation, is, both weighty, and, vigorous, as all clauses (a) to (c) of Section 2 (iii) of the ND & PS Act, are cumulatively readable, more specifically, clause (c) r in the instant case, is, readable with clause (a). Even if the afore submission addressed by the learned Additional Advocate General has some vigor, yet its vigor is diluted, by the factum
(i) qua given in E Micheal Raj's case, the afore argument appearing to stand dealt with, and, adjudicated upon, and, with the hereinafter extracted apt portion thereof:
15. It appears from the statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 26 rationalized sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent the rate of purity is irrelevant since any .
preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rational. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s) the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 27 insignificant quantities, with more sever punishment."
also making an emphatic, and, categorical expression, that, in making the relevant determination, visavis, the apt .
weight(s), the weight, of, one or more neutral substance(s), as, mixed with the relevant narcotic drug or psychotropic substance, rather, being excludable, (ii) and only, the, weight of the apt pure content, of, the Narcotic drug or Psychotropic substance, being the appropriate reckoneable parameter, and, also only the relevant weight thereof, being enjoined to be gauged. Thereupon, even though, the afore verdict was not dealing with charas, mixed with the one or more neutral substance(s), yet the hereinabove extracted apt portion thereof, adequately benumbs the afore espousal, as, made by the learned Additional Advocate General, (iii) thereupon the weight of the neutral substance added or coagulated with the pure content, of, charas, is, unreckonable hence, for, making any further determination, whether, the apt seizure being construable to be falling, within or outside the category of small, intermediate or commercial quantity. Moreover, when the afore explicit pronouncement, made in E Micheal Raj's case ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 28 (supra), has been rendered for adjudication in Hira Singh's case (supra), to a larger bench of the Hon'ble Apex Court,also, hence thereupto this Court, does not deem it fit, to refuse .
indulgence of bail, and, in making the aforesaid conclusion, this Court is also deriving the fullest leverage, from a judgment rendered, in, Rajvir Case (supra).
15. Even though, hence disconcurrent/divergent views are expressed by this Court, and, by a coordinate Bench of this Court, visavis, the conundrum hence besetting both the Courts, (a) yet this Court is constrained not to refer the afore conundrum, for, an adjudication thereon being rendered, by a larger Bench of this Court, as (b) the Hon'ble Apex Court while making a decision in Hira Singh's case (supra), has, hence thereunder made a reference to a larger bench, of the Hon'ble Apex Court, visavis, the conundrum besetting this Court (c) thereupon when verdicts of the Hon'ble Apex Court are binding upon this Court, (d) thereupon, for avoiding emanation, of, an earlier thereto conflicting rendition by a larger Bench of this Court, visavis the verdict as may come, from, the larger Bench, of, the Hon'ble Apex Court, upon a reference made qua ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 29 it in Hira Singh's case (supra), also, thereupto it would be insagacious or unbefitting, to rest, the validity of conflicting verdicts recorded by coordinate Benches of this Court, by .
making a reference to a larger Bench of this Court.
16. Consequently, the petition is allowed, and, the bail petitioner is ordered to be released, on bail, subject to his complying with the following conditions:
(i) that the bail applicant shall furnish personal bond in the sum of Rs 5,00,000/ with three sureties in the like amount to the satisfaction of the learned Special Judge, Chamba.
(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency;
(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iv) that he shall not leave India without the prior permission of the Court ;
(v) that he shall deposit his passport, if any, with the Police Station concerned; and ::: Downloaded on - 19/03/2019 22:04:30 :::HCHP 30
(vi) that in case of violation of any of these conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody.
(vii) that upon his reindulging in crime, thereupon the .
State is at liberty for motioning this Court, for, cancellation of the bail.
17. Any observation made hereinabove, shall not, be taken as an expression of opinion on the merits, of the case, and, the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
r (Sureshwar Thakur)
15 March, 2019
th
Judge.
(priti/kalpana)
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