Himachal Pradesh High Court
Sunil Rana vs State Of Himachal Pradesh on 29 January, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No.115 of 2019
Decided on : 29.1.2019
.
Sunil Rana .....Petitioner.
Versus
State of Himachal Pradesh ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Rajiv Rai, Advocate.
For the respondent: Mr. Praveen Kumar Bhatti, Addl.
A.G.
Sureshwar Thakur, J (oral)
The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., wherethrough he seeks indulgence, of his being ordered to be released from judicial custody, whereat, he stands extantly lodged, for, his allegedly committing offences, constituted under Section 20, 21, 22 61-85 of the ND&PS Act, under FIR No. 252 of 2018, dated 13.10.2018, registered with Police Station, Nalagarh, District Solan, H.P.
2. The instant petition, warrants, an, adjudication being meted, vis-a-vis, (a) the aggregate or the total, of, the 1 Whether reporters of the local papers may be allowed to see the judgment?
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banned psychotropic substance, rather comprising the .
apposite parameter, for, making a further determination, qua, thereupon, the purported recovery(ies), thereof 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 the aggregate or the gross weight, of, the entire contents, as, carried in the recovered psychotropic substance, likewise 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 (ii)commercial quantity thereof.
3. In FIR No. 252 of 2018, of, 13.10.2018 registered against accused/petitioner herein, the FSL concerned, (i) qua the 15 bottles, whereamongst, (a) qua 5 bottles containing wincirex chlorpheniramine codeine phosphate syrup, (b) qua 2 bottles containing chlorphemizamine maleate codeine phosphate, ( c) and, ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...3...
qua eight bottles without wrapper, has opined that (d) the .
quantity of codeine phosphate in the afore 15 bottles, being 1785.250 gms (e) however 29.740 grams of charas (f) and 0.270 mg of Heroin, allegedly recovered, from, the exclusive and conscious possession of accused hence renders them to fall, within, the category, of less than commercial quantity thereof, and, thereupon, the rigor(s) of statutory provisions of Section 37 of the NDPS Act, are not applicable qua them.
4. Mr. Rajiv Rai, the learned counsel for the petitioner contends, that, with hence the quantum of codeine phosphate, rather standing in the table appended with the Narcotic Psychtropic Substance Act, hence specified, to, weigh 5 grams, for, it, being construable, as, small quantity thereof, (i) hence, the afore opined aggregate quantum, only, of, purified codeine phosphate, as, borne in the seized narcotic substance, alone, being construable, to be the apt reckonable principle, for making a further determination, vis-a-vis, the apt psychotropic substance recovered, from the exclusive and conscious possession, of the accused, dehors, the total bulk of Codeine Phosphate ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...4...
bottles, 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 Codeine Phosphate, and, omits to make any explicit reference therein, vis-a-vis, the other part of the psychotropic substance/neutral substance, carried in the seized Codeine phosphate bottles, rather, being also reckonable, nor , with, the total or aggregate, weight of, the entire milli-gram, carried in the seized bottles, 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.
5. 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:-
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"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 black-coloured 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...6...
made by the learned counsel for the .
respondent that the entire 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.170-171)
(a)wherein an affirmative view has been pronounced, (i) vis-
a-vis 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...7...
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, 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...8...
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 mentioned in the Notifications dated 14.11.1985 and 29.1.1993. Therefore, if the said requirement meant for ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...9...
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 r 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.495-496)
(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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...10...
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, 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 vis-
a-vis 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...11...
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 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-a-vis, 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, ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...12...
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 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, the pure content of the narcotic drug or psychotropic substance, alone comprising the apt reckonable parameter, b) AND when hereat, the, resin content is the apposite pure content of psycotropic ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...13...
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, vis-a-vis, 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 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, ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...14...
"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 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...15...
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,
(iii) thereupon also the aforesaid, expostulation, does not give any leverage to the espousal, of, the counsel for the ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...16...
bail applicants, rather contrarily support 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 the singular, reckonable parameter, for making an apt determination, of, quantification thereof, hence being rescinded thereupon, the espousal addressed before this Court, by the counsel for the petitioners, hence, rather warranting rejection. The aforesaid submission, is 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 3.07.2017, whereunder, the hereinafter extracted questions, stand ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...17...
referred, for determination, by a larger Bench of the .
Hon'ble Apex Court, and, more particularly with the apt reference, appertaining, vis-a-vis, the legal expostulation settled by the Hon'ble Apex Court in E. Micheal Raj's case (supra), being or not being per incuriam, vis-a-vis, the notification of 19.10.2001, rather hence awaiting rendition thereon, thereupon, r 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...18...
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?
However, the aforesaid submission is rejected, for the reasons, (ii) 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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...19...
Hon'ble Apex Court, in, E. Micheal Raj's case (supra), with, .
the afore applied clear expostulations (supra) occurring therein, standing neither quashed nor set aside, thereupon, dehors any apt non-rendition thereon , it is not deemed just, fit and appropriate, to curtail the liberty of the bail petitioners. 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, appertaining to not, the, afore verdict, rather appertaining, vis-à-vis, the premier initial verdict rendered in E. Michael Raj's case (supra), verdict whereof is directly attractable, vis-à-vis, the controversy at hand, b) thereupon, till the apt reference made to a larger Bench, vis-à-vis the efficacy of the pronouncement, occurring in E. Michael Raj's case, stands answered, and whereunder the verdict rendered in E.Michael Raj's case 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 un- ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...20...
referred 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 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 co-equal, to the one which rendered, the, subsequent verdict in Harjit Singh's case (supra) (g) and when the afore earlier pronouncement, as made, vis-à-vis the controvery at hand, may prima-facie, on the principle of propriety be binding on the subsequent Bench of the Hon'ble Apex Court, holding a Bench strength, co-equal to the earlier Bench strength, which rendered a verdict, in, Michael Raj's case (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).
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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's case (supra), and, in Harjeet Case, whereon, the Division Bench of this Court, has assigned merit, to the pronouncement made, in, Harjeet Singh 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, vis-a-vis, 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 the reference made by the Hon'ble Apex Court vis-a-vis, the conundrum, wherewith this Court is beset, prima-facie prevails, upon, the earlier therewith pronouncement made, upon, an apposite ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...22...
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 vis-a-vis it, only, vis-a-
vis E Micheal's case. 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. 7,00,000/- with four local sureties in the like amount to the satisfaction of the learned Special Judge concerned.
(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 ::: Downloaded on - 30/01/2019 22:01:20 :::HCHP ...23...
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
(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 re-indulging in criminal activities, it shall be open to the respondent, to move this Court for cancellation of bail.
10. 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.
Dasti copy.
29th January , 2019
(kalpana)
(Sureshwar Thakur),
Judge.
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