Himachal Pradesh High Court
Sandeep Kumar vs Of on 21 September, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. : 2005 of 2023 .
Reserved on : 22.08.2023
Decided on : 21.09.2023
Sandeep Kumar ...Applicant
Versus
of
State of Himachal Pradesh ...Respondent
Coram rt
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 For the applicant : Mr. Deepak Kaushal, Senior Advocate, with Mr. Aditya Chauhan and Mr. Abhishek Verma, Advocates.
For the respondent : Mr. Tejasvi Sharma, Additional Advocate General, with Ms. Leena Guleria, Deputy Advocate General.
ASI Om Prakash, I.O., Police Station Paonta Sahib, present in person, alongwith the police record.
Virender Singh, Judge.
Applicant-Sandeep Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 2him on bail, during the pendency of trial, in case FIR No. 86 of 2023, dated 17th April, 2023, registered with Police .
Station Paonta Sahib, District Sirmaur, H.P., under the provisions of Section 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act').
of
2. According to the applicant, he is an innocent person and a law abiding citizen and has falsely been rt implicated, in this case. He has been arrested in the above-noted case, on 17th April, 2023. He has termed the story of the prosecution as concocted one and has falsely been implicated, in this case.
3. It is the case of the applicant that no legal evidence is there against him. The prosecution case is also stated to be vitiated, on the ground of non-compliance of Section 42 of the NDPS Act.
4. According to the applicant, no case is made out against him and the contraband, allegedly, recovered, in this case, does not fall within the definition of the provisions of NDPS Act.
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 35. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf .
of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
6. On the basis of the factual position, as of mentioned in the application, a prayer has been made to release the applicant on bail, during the pendency of the rt trial.
7. When put to notice, the police has filed the status report, disclosing therein, that on 16 th April, 2023, ASI Om Prakash, alongwith HC Ravinder No. 504, HHC Ishwar No. 191 and other police official, was on patrolling duty, in vehicle No. HP-17F-1727, driven by HHC Balvinder Singh. At about 10.15 p.m., when, they were present at Badripur Chowk, then, a secret information was received, that, one Sandeep Kumar (applicant) is coming from Puruwala towards Mankind Factory side, on scooty No. HP-
17D-4714.
7.1. As per the information, the said Sandeep Kumar was having the narcotics/syrup in a sac and in ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 4 case, picketing is done at Kishanpura, near Mankind Factory, then, the contraband, in large quantity, can be .
recovered. The said information, according to the Investigating Officer, was found to be reliable and authenticated. Thereafter, in order to comply with the provisions of Section 42 (2) of the NDPS Act, information of was submitted to SDPO Paonta Sahib.
7.2. The Investigating Officer, alongwith the police rt official, thereafter, had proceeded towards Kishanpura. At 10.45 p.m., when, they reached near Jamukhala, two persons, namely Yogesh Kumar and Vishal Kanwar, met them, who were apprised about the factual position, as received by the Investigating Officer and both of them were associated in the investigation. Thereafter, picketing was done at the same place and the police party, alongwith the independent witnesses, waited for the scooty. At about 11.00 p.m., one scooty bearing No. HP-17D-4714, being driven by its driver, was found to be coming from Jamniwala side, which was signalled to stop.
7.3. On inquiry, the rider disclosed his name as Sandeep Kumar (applicant). He was apprised about the ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 5 secret information. Thereafter, the scooty was searched.
During search, on the foot rest, one green coloured sac was .
found, which, on opening was found to be containing another white coloured sac. The white coloured sac was taken out. On checking the green coloured sacn, it was found containing 72 vials of Codeine Phosphate and of Chlorpheniramine Maleate Syrup, Make Kuff Lok, 100 ml each, MFG-LICrt No. MNB/05/170 and MB/05/171, marketed by SI Lok Pharmaceuticals -8 Anjna C.O. TB Road Ahmdabad. The white coloured sac, on opening, was found containing 115 vials, as aforesaid, 100 ml each.
Thus, total 187 vials were recovered.
7.4. As per the Investigating Officer, all the vials were fond to be the prohibited drugs. The recovered vials were put int the same manner, in which, they were found, from the sac and those sacs were seals with seal impression 'T'.
7.5. The other codal formalities were completed and the accused (applicant) was arrested. The contraband, so recovered, was sent to FSL Junga, for chemical analysis, ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 6 after complying with the provisions of Section 52A of the NDPS Act.
.
7.6. As per the status report, the report from FSL Junga has been received, in which, the following opinion has been given:
'Codeine Phosphate is present in the exhibits of Kufflok (stated as Codeine Phosphate Syrup).' Thus, the total weight of vials was found to be 21.299 kg.
7.7.
rt Lastly, it has also been mentioned, in the status report, that the investigation is complete and only the record from SI LOK Pharmaceuticals B-8 Anjna C.O. TB Road Ahmdabad, is to be obtained, for which, a request, through e-mail, had been made. Since, the record has not been made available by the said firm, as such, one police official has been deputed from the Police Station, but, the said record was not found there.
8. On the basis of the above facts, a prayer has been made that the bail application may kindly be dismissed.
9. Whether the contraband, so recovered, in this case, falls within the provisions of the NDPS Act or not, in this regard, learned senior counsel appearing for the ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 7 applicant, has vehemently argued that in view of the decision of the Hon'ble Supreme Court in Binod Kumar .
alias Binod Kumar Bhagat versus State of Bihar, reported in (2018) 4 Supreme Court Cases 199, the contraband, namely Corex cough syrup, containing codeine, does not fall within the definition of the provisions of of NDPS Act.
10. The Hon'ble Supreme Court, in Binod Kumar's rt case (supra) has granted bail, on the basis of the fact that Notification, dated 10th March, 2016, was set aside by the Delhi High Court in case, titled as Pfizer Ltd. versus Union of India, reported in 2016 SCC OnLine Del 6150.
The said judgment of Delhi High Court has been set aside by Hon'ble Supreme Court, on 15 th December, 2017, in case, titled as Union of India and another versus Pfizer Limited and others, reported in (2018) 2 Supreme Court Cases 39, whereas, Binod Kumar's case (supra) has been decided by the Hon'ble Supreme Court on 10 th August, 2017. Relevant paras-28 to 31 of the judgment of the Hon'ble Supreme Court in Pfizer Limited's case (supra) are reproduced, as under:
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 8"28. To similar effect is the judgment of a single Judge of the Karnataka High Court in Lundbeck India Pvt. Ltd. v Union of India, (2014) 5 Kant LJ
440. .
29. We approve of these two judgments as having laid down the correct law on the construction of Section 26A of the Drugs Act.
30. Though arguments have been made as to whether Section 26A is legislative in nature and therefore excludes natural justice, we do not of propose to go into the same inasmuch as since the learned single Judge's judgment is being set aside on one point and one point alone. In this view of the matter, we are of the opinion that the rt impugned judgment dated 1.12.2016 (Pfizer Ltd. v. Union of India, 2016 SCC OnLine Del 6150) deserves to be set aside.
31. On the facts of these cases, a suggested course of action was stated by learned counsel appearing on behalf of the petitioners/appellants. This course is that instead of now remitting the matter back to the Delhi High Court for an adjudication on the other points raised in the writ petitions, the case of 344 FDCs that have been banned, plus another 5 FDCs that have been banned, which comes to 349 FDCs, (barring 15 FDCs that are pre 1988 and 17 FDCs which have DCG(I) approval) pursuant to the Kokate Committee report, by notifications of the Central Government under Section 26A of the Drugs Act, should be sent to the DTAB, constituted under Section 5 of the Drugs Act, so that it can examine each of these cases and ultimately send a report to the Central Government. We reiterate that only on the peculiar facts of these cases, we think that such a course commends itself to us, which would obviate further litigation and finally set at rest all other contentions raised by the petitioners. We say so because we find that the Kokate Committee did deliberate on the 344 FDCs plus 5 FDCs and did come to a conclusion that the aforesaid FDCs be banned, but we are not clear as to what exactly the reasons for such ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 9 conclusions are, and whether it was necessary in the public interest to take the extreme step of prohibiting such FDCs, instead of restricting or regulating their manufacture and supply. In order .
that an analysis be made in greater depth, we, therefore, feel that these cases should go to the DTAB and/or a Sub-Committee formed by the DTAB for the purpose of having a relook into these cases. It is important, however, that the DTAB/Sub-Committee appointed for this purpose will not only hear the petitioners/appellants before us, but that they also hear submissions of from the All India Drugs Action Network. The DTAB/Sub-Committee set up for this purpose will deliberate on the parameters set out in Section 26A of the Drugs Act, as follows."
11. rt As such, no benefit could be derived by the applicant.
12. As per the report of the FSL, Codeine Phosphate was found in the contraband, which was recovered from the applicant. The same has been mentioned at serial No. 28 of the Notification, specifying the small quantity and commercial quantity, issued by the Ministry of Finance, Department of Revenue, Government of India.
13. The term "manufacturing drug" has been defined, in Section 2 (xi) of the NDPS Act, which reads as under:
"2. Definitions.
xxx xxx xxx
(xi) "manufactured drug" means -::: Downloaded on - 21/09/2023 20:35:47 :::CIS 10
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
.
(b) any other narcotic substance or
preparation which the Central
Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the official Gazette, declare to be a of manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, rt having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug."
14. In this case, it has been argued by the learned counsel appearing for the applicant that the contraband, allegedly recovered, from the possession of the accused, does not fall within the definition of the manufacturing drug.
15. To buttress his contention, the learned counsel appearing for the applicant, has relied upon the decision of the Co-ordinate Bench of this Court, rendered in a bunch of cases, lead case whereof is CrMP (M) No. 2866 of 2022, titled as Raghav Saini versus State of Himachal ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 11 Pradesh, decided on 26th June, 2023. Relevant para-10 of the judgment, is reproduced, as under:
.
"10. While fairly acknowledging factum with regard to filing of the challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, vehemently argued that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve any leniency, rather they of need to be dealt with severely. While making this Court peruse status report as well as record, learned Additional Advocate General contended that there is overwhelming evidence adduced on rt record suggestive of the fact that bail petitioners indulges in the illegal trade of narcotics and by no stretch of imagination, it can be inferred that drug recovered from the conscious possession of the bail petitioners was for therapeutic purposes. Learned Additional Advocate General submitted that though notification dated 14.11.1985, issued by the Central Government is not attracted in the given facts and circumstances of the case, but even otherwise, Section 80 of the NDPS Act, nowhere prohibits the registration of a case under the NDPS Act if there is material available on record to suggest that contraband recovered from the conscious possession of the accused also contains "Narcotic Drugs", may be in less quantity. He further submitted that as per judgment passed by the Hon'ble Apex Court in Hira Singh v. Union of India, SCC Online SC 382, entire bulk is to be taken into consideration and if it is so, provisions contained under Section 37 of the Act are attracted, which clearly prohibit the grant of bail in the cases involving commercial quantity of contraband. Mr. Kahol further submitted that judgment passed by the High Court of Allahabad in Vibhor Rana's case (supra) has already been laid challenge in the Hon'ble Supreme Court of India and as such, same cannot be said to have attained finality.
While making this Court peruse judgment passed ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 12 by the High Court of Calcutta in case titled Dechay Tshering Bhutia v. State of West Bengal and Ors, 2022 SCC OnLine Cal 204, Mr. Kahol argued that twin conditions, as .
mentioned in Entry 35 of the Notification dated 14.11.1985 are required to be satisfied before claiming benefit, if any, of the Notification. He submitted that in the cases at hand, though report of FSL suggests that quantity of Prohibited Drug i.e. Codeine Phosphate, is less than the prescribed limited, but there is nothing to suggest that drugs recovered from the conscious of possession of the accused are/were being used by them for therapeutic purposes and as such, no benefit, if any, can be taken by the accused of the Notification dated 14.11.1985. He also invited rt attention of this court to the judgment passed by the Delhi High Court in Case titled Mohd Ahsan v. Customs, decided on 16.9.2022 in Bail Application No. 1136 of 2021, to state that if alleged contraband seized falls within the definition of "Manufactured Drug" under Section 2
(xi) of the Act, then the entire notification including the aforesaid Note-4 will be applicable. He submitted that even otherwise, miniscule percentage of narcotic substance would not be ignored, rather while determining the nature of the quantity seized entire contraband shall be taken into consideration. Lastly, Mr. Kahol, argued that since bail petitioners have indulged in heinous crime having adverse impact on the society and as such, prayer made by the petitioners, who in the event of their being enlarged on bail, may not only flee from justice, but may indulge in such like activities again, deserves outright rejection."
16. With due respect to the decision of the Coordinate Bench of this Court, the same is not applicable to the facts and circumstances of this case, as, the quantity of the codeine phosphate was found less than ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 13 0.2%, in the contraband, recovered in the case, which was the subject matter of the decision by the Coordinate .
Bench, whereas, in the present case, in the report of FSL, Junga, the percentage of codeine phosphate has not been mentioned. The relevant portion of the report of FSL, Junga, is reproduced as under:
of "Various scientific tests such as physical identification, chemical, chromatographic & UV-viz spectrophotometric analyses were carried out in rt the laboratory with the exhibits Kufflok (stated as Codeine Phosphate Syrup) in cloth parcels marked as S1 & S2, with representative and homogeneous samples. The above tests performed indicated the presence of codeine phosphate in the samples of Kufflok (stated as Codeine Phosphate Syrup) in cloth parcels marked as S1 & S2. The result thus obtained is given below:
Codeine Phosphate is present in the exhibits Kufflok (stated as Codeine Phosphate Syrup) in cloth parcels marked as S1 & S2."
17. The applicant is also not entitled for the relief of bail, on the ground, that the contraband, i.e. vials of Kufflok, was meant for therapeutic purpose.
18. In this backdrop, the material question, which arises for determination, before this Court, is as to whether the said plea, without any document, can be accepted, at this stage.
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 1419. The applicant was apprehended during the odd hours of night, at about 11.00 p.m., while transporting the .
contraband on his scooty No. HP-17D-4714. If, the facts and circumstances of the present case are seen, in the light of the decision of the Hon'ble Supreme Court in Mohd. Sahabuddin and another versus State of Assam, of reported in (2012) 13 Supreme Court Cases 491, then, the said submissions of the learned counsel appearing for rt the applicant are liable to be rejected. Relevant paras-11 and 12 of the judgment, are reproduced, as under:
"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 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 ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 15 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 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 of the penal provisions of the NDPS Act calling for appropriate punishment to be inflicted upon the appellants. Therefore, the appellants' failure to establish the specific conditions required to be rt satisfied under the abovereferred 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."
(self emphasis supplied)
20. The applicant is also not entitled to the relief, as prayed for, in view of the judgment of the Hon'ble Supreme Court in a case, titled as Hira Singh and another versus Union of India and another, reported in (2020) 20 Supreme Court Cases 272, wherein, it has been held that while determining the fact, as to whether, the quantity of the contraband is small quantity or commercial quantity, the weight of the entire material/mixture, including the weight of the neutral material, is to be considered.
Relevant paras-3.3, 10.5, 11 and 12 of the judgment, are reproduced, as under:
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 16"3.3 The result of the issuance of the impugned notification is that the offender would be awarded the punishment by looking into the total quantity of the material found in possession of .
the offender even if on chemical analysis it is found that the actual content of the narcotic drug or psychotropic substance is covered under the "small quantity", but by adding the neutral material the punishment awarded is for "commercial quantity". For instance, there are two offenders. One "A" is having quantity of 4 grams heroin which is less than the "small of quantity" which is 5 grams, mentioned in column no.5 of the table. Another "B" is in possession of 1 gram of heroin, but has mixed it with "neutral material" of 250 grams, it becomes 251 grams, rt more than the "commercial quantity" which is 250 grams as per column no.6 of the table. It is submitted that if these two offenders "A" and "B"
are convicted, then "A" would be given a punishment for 1 year while "B" can be given up to 20 years though actual content of the offending drug is lesser in case of "B". It means one year punishment for heroin and 19 years for "neutral material" which is not otherwise punishable under the NDPS Act. Thus, the effect of Note 4 is more the dilution, less the potency of the drug, but more the punishment. Therefore, it would lead to injustice and would lead to variation in the punishment of the accused depending upon the quantity of the "neutral material" instead of the "drug material".
xxx xxx xxx 10.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 17 time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in .
order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health of and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, rt prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance (s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted.
11. Now, so far as the challenge to the impugned Notification No.2942(E) dated 18.11.2009 issued by the Union of India, by which, "Note 4" has been added to the Notification S.O.1055(E) dated 19.10.2001 specifying small quantity and commercial quantity of the narcotic drugs and psychotropic substance covered under the NDPS ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 18 Act, 1985 is concerned, as such it can be said to be clarificatory in nature and / or by way of ex abundanti cautela / abundant caution. As observed herein above, while determining the .
small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), it includes the weight of neutral substance (s) also and not only the actual content by weight of the offending drug. Therefore, even if "Note 4" which has been added vide Notification dated 18.11.2009 is not added, in that case also, it of makes no difference and / or change. It appears that after the decision of this Court in the case of E. Micheal Raj (Supra) by way of abundant caution, the Union of India has come out with a rt Notification dated 18.11.2009 adding "Note 4". Thus, adding "Note 4" by Notification dated 18.11.2009 to the earlier Notification dated 19.10.2001 can be said to be clarificatory and by way of abundant caution only. Even otherwise, for the reasons stated above, the impugned Notification dated 18.11.2009 adding "Note 4" to the earlier Notification dated 19.10.2001, cannot be said to be contrary to the scheme and the various provisions of the NDPS Act.
11.1. At this stage, it is required to be noted that Notification dated 19.10.2001 was issued in exercise of powers conferred by clauses (viia) and (xxiiia) of Section 2 of NDPS Act. Section 2(viia) defines "commercial quantity" and Section 2(xxiiia) defines "small quantity" and it means any quantity greater or lesser than the quantity specified by the Central Government by Notification in the official gazette, as the case may be. Notification dated 19.10.2001 specifies the small quantity and commercial quantity with respect to respective narcotic drugs and psychotropic substances. As observed herein above, by abundant caution and to make it further clear "Note 4" has been added. Therefore, it cannot be said to be ultra vires to Scheme and relevant provisions of the NDPS Act, as contended on behalf of the accused and intervener. Therefore, challenge to the impugned ::: Downloaded on - 21/09/2023 20:35:47 :::CIS 19 Notification dated 18.11.2009 adding "Note 5" of the clause to the Notification S.O.1055(E) dated 19.10.2001 fails.
.
12. In view of the above and for the reasons stated above, Reference is answered as under:
12.1. The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to of be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending rt narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
12.2. In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
12.3. Section 21 of the NDPS Act is not stand-
alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
12.4. Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 2021. A Coordinate Bench of this Court, in CrMP (M) No. 502 of 2014, titled as Om Pal versus State of .
Himachal Pradesh, decided on 6th May, 2014, has also held that the entire quantity of the contraband is required to be taken into consideration, for determining the quantity, i.e., small, intermediate or commercial. Relevant of para-28 of the judgment, is reproduced, as under:
"28. Since, the petitioner admittedly has been rt found to be in possession of 229 vials of Rexcof (cough syrup) of 100 ml quantity and the entire quantity is now required to be taken into consideration to determine the quantity, i.e. small, intermediate or commercial, therefore, the case of the petitioner admittedly does not fall within the purview of Section 167 (2) of the Code and is covered by Section 36A (4) of the Act. Therefore, the present petition being pre-mature is accordingly dismissed."
22. In view of the above, neither the applicant is able to make out a case, wherein, it can be held, at this stage, that the applicant has not committed the offence, nor, it could be said, at this stage, that in case, he is ordered to be released on bail, he may not commit the same offence. The arguments of the learned counsel appearing for the applicant are too short to conclude that the twin conditions, as enumerated in Section 37 of the NDPS Act, are in favour of the applicant.
::: Downloaded on - 21/09/2023 20:35:47 :::CIS 2123. Therefore, no case for grant of bail, at this stage, is made out. Consequently, the bail application is .
dismissed.
24. Any of the observations, made hereinabove, shall not be taken as an expression of opinion on the merits of the case and the learned trial Court shall decide of the matter uninfluenced by any of the observations made hereinabove. rt ( Virender Singh ) Judge September 21, 2023 ( rajni ) ::: Downloaded on - 21/09/2023 20:35:47 :::CIS