Himachal Pradesh High Court
Nasir Husain vs State Of H.P on 30 April, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 319 of 2024 Reserved on: 22.04.2024 Date of Decision: 30.04.2024 .
Nasir Husain ... Petitioner
Versus
State of H.P ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Ashwani Sharma, Advocate.
For the Respondent : Mr. Baldev Negi, Additional
r Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police arrested the petitioner in F.I.R. No. 42 of 2023, dated 02.09.2023 registered at Police Station Nerwa, District Shimla, for the commission of offences punishable under Section 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). The facts stated in the F.I.R. are fabricated, concocted and without any basis. The Magistrate did not draw any sample and the entire bulk was sent for chemical analysis.
The report of the Chemical Examiner does not mention the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 2percentage of Codeine Phosphate in the cough syrup. The contents of Codeine Phosphate are less than 10 mg (per dosage) and the same is not beyond the prescribed quantity. No offence .
is made out under the provisions of the NDPS Act. Syrup Rukscof is a cough syrup and is used for therapeutic purposes.
The contents of the Codeine Phosphate would be less than 10 mg per 100 ml and it is lawfully permissible to sell such cough syrup in the open market. It can be transported, kept in stock and sold as a prescribed drug under Schedule H of the Drugs and Cosmetics Act. The cough syrup is a solution of sugar that contains Codeine Phosphate in fractional proportions. The rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner does not have any criminal antecedent. He is the permanent resident of the address mentioned in the petition. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.
2. The police filed a status report asserting that the police party intercepted a vehicle bearing No. HR-5S-1381 on 01.09.2023 at about 11:15 p.m. It was searched based on suspicion. The police recovered 11 bottles of Rukscof Syrup ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 3 containing Chlorpheniramine maleate & Codeine Phosphate syrup. The police seized the bottles and arrested the petitioner, who was driving the vehicle. He revealed on enquiry that he had .
purchased 11 bottles from Suri Chauhan. The account of the accused was checked and it was found that money was transferred on eleven occasions to Surveer Singh @ Suri Chauhan. The registered owner of the vehicle revealed that he had sold the vehicle to the petitioner. The police arrested Surveer Singh @ Suri Chauhan.. The total weight of contraband is 1.330 kg, which is a commercial quantity. Hence, it was prayed that the present petition be dismissed.
3. I have heard Mr. Ashwani Sharma, learned counsel for the petitioner and Mr. Baldev Negi, learned Additional Advocate General for the respondent-State.
4. Mr Ashwani Sharma, learned counsel for the petitioner submitted that the quantity of Codeine Phosphate recovered from the possession of the petitioner is less than commercial quantity and the police erred in considering the entire cough syrup as the Codeine Phosphate. He relied upon the judgment of this Court in Mukesh Kumar Vs. State of H.P. 2017:
HHC 2945 and Sunil Rana vs State of Himachal Pradesh 2019 (1) DC ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 4 (Narcotics) 110 in support of his submission. He submitted that the possession of a cough syrup having a concentration of not more than 2.5% does not fall within the purview of the NDPS Act .
but under the Drugs and Cosmetics Act. He relied upon the judgment of this Court in Kesar Singh vs. State of H.P 2024: HHC 943, in support of his submission. He submitted that the petitioner has been in custody since September 2023 and is entitled to bail. He relied upon the judgment of the Hon'ble Supreme Court in Badsha SK vs State of West Bengal 2023 SSC OnLine SC 1867 in support of his submission. He prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Baldev Negi, learned Additional Advocate General submitted that the entire quantity of the syrup is to be treated while determining its nature under NDPS Act. The petitioner was found in possession of 1.330 kg of Rukscop Syrup, which is a commercial quantity; therefore, rigours of Section 37 of the NDPS Act apply to the present case. There are no reasons to believe that he had not committed the offence and will not commit the offence in case of release on bail. Hence, he prayed that the present petition be dismissed.
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 56. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by .
the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC Online SC 1059, wherein it was observed as under:-
"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 6 prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken .
into consideration for the grant of bail by the Courts has been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.
Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 77. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta .
Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
r (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 810. It was held by Hon'ble Supreme Court in Hira Singh v.
Union of India, (2020) 20 SCC 272, that as per the statement of Objects and Reasons and the Preamble and the relevant .
provisions of the NDPS Act, the quantity of neutral substance cannot be excluded. It was observed:
10.2. Therefore, considering the Statement of Objects and Reasons and the Preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act, emphasis is on narcotic drug or psychotropic substance (Sections 21, 22, 23, 24, 27 and 43). Even in the Table attached to the Notification dated 19-10-2001, Column 2 is with respect to the name of narcotic drugs and psychotropic substances and Columns 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19-10-2001 specifically provides that the quantity shown against the respective drugs listed in the Table also apply to the preparations of the drug and the preparations of substances of Note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the Table apply to isomers ..., whenever the existence of such substance is possible.
Therefore, for the determination of "small quantity or the commercial quantity" with respect to narcotic drugs and psychotropic substances mentioned in Column 2 the quantity mentioned in Clauses 5 and 6 is required to be taken into consideration. However, in the case of a mixture of the narcotic drugs/psychotropic drugs mentioned in Column 2 and any mixture or preparation ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 9 with or without the neutral material of any of the drugs mentioned in Table, lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances forming part of the mixture and lesser of commercial quantity .
between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. For example, a mixture of 100 gm is seized and the mixture consists of two different narcotic drugs and psychotropic substances with neutral material, one drug is heroin and the other is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective narcotic drugs and psychotropic substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in the case of Entry 239, the entire weight of the mixture/drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] is accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the legislature.
10.3. At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substances. Caffeine is mixed with heroin, it causes heroin to vaporise at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take the example of heroin. It is known as a powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealers will add other drugs or non- intoxicating substances to the drug so that they can sell ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 10 more of it at a lesser expense to themselves. Brown sugar/smack is usually made available in powder form. The substance is only about 20% heroin. The heroin is mixed with other substances like chalk powder, and zinc oxide, because of these, impurities in the drug, .
brown sugar is cheaper but more dangerous. These are only a few examples to show and demonstrate that even a mixture of narcotic drugs or psychotropic substances is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substances and narcotic drugs or psychotropic substances. Therefore, if it is accepted that it is only the actual content by weight of the offending drug which is relevant for determining whether it would constitute a small quantity or commercial quantity, in that case, the object and purpose of enactment of the NDPS Act would be frustrated. There may be few punishments for "commercial quantity". Certainly, that would not have been the intention of the legislature.
10.4. Even considering the definition of "manufacture", "manufactured drug" and "preparation" conjointly, the total weight of such "manufactured drug" or "preparation", including the neutral material is required to be considered while determining a small quantity or commercial quantity. If it is interpreted in such a manner, then and then only, the objects and purpose of the NDPS Act will be achieved. Any other intention to defeat the object and purpose of enactment of the NDPS Act viz. to the Act is a deterrent.
11. The judgment of the Hon'ble Supreme Court passed in E. Micheal Raj vs Intelligence Officer, Narcotic Control Bureau, 2008 5 SCC 161 was specifically overruled.
12. In view of the binding judgment of the Hon'ble Supreme Court in Hira Singh (supra) and the judgment of this Court in Sunil ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 11 Rana (supra) relying upon E Micheal Raj (supra) and the judgment of Mukesh Kumar (supra) holding that only the pure quantity of Codeine Phosphate is to be taken into consideration cannot be followed.
.
13. The judgment in Hira Singh (supra) was followed by the Division Bench of Delhi High Court in Mohd. Ahsan v. Customs, 2022 SCC OnLine Del 2910 and it was held that the weight of a neutral substance cannot be ignored while determining the nature of the quantity seized. It was observed:
"52. In view of the aforesaid decision, the questions (a) and (b) referred to us are answered as follows:
Question - "(a) whether in cases specifically related to manufactured drug with a minuscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?"
Ans: If the contraband seized falls within the provisions of the NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between.
Question - "(b) whether Note 4 of the S.O. 1055(E) dated 19th October 2001 published in the Gazette of India, Extra., Pt.II, Sec.3(ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to the manufactured drug which contains a minuscule percentage of a narcotic drug?"
Ans: If the alleged contraband seized falls within the definition of 'manufactured drug' under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid 'Note 4' will be applicable."::: Downloaded on - 30/04/2024 20:35:27 :::CIS 12
14. This judgment was followed in H.S. Arun Kumar v. State of Goa, 2022 SCC OnLine Bom 4696, and it was held that the weight of the neutral substance has to be considered while determining the quantity .
under the NDPS Act. Hence, the weight of blotting paper containing LSD was to be considered for determining the quantity. It was observed: -
"64. There is an express indication in the NDPS Act about taking into account the entire quantity of the drug or the psychotropic substance seized in a case for determining the quantum of punishment and not just the pure drug content alone. This is evident from the following:
(i) The statement of objects and reasons to the amendment Act 16 of 2014, in terms provides that since the NDPS Act duly provides for punishment for the preparation of drugs also, this amendment seeks to clarify the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not the pure drug content. As noted hereafter, "preparation" in relation to a narcotic drug or psychotropic substance specifically includes "mixture" in whatever physical state containing one or more such narcotic drugs or psychotropic substances.
Thus, the legislative intent is clear that the entire quantity of the preparation is to be taken into account and weighed for determining the quantum of punishment and not merely the pure drug content for such preparation or mixture;
(ii) Section 2 (xx) defines "preparation" in relation to a narcotic drug or psychotropic substance means any one or more such drugs ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 13 or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances. Thus, it is evident that "preparation" includes a mixture, in whatever physical state, containing .
one or more such drugs or substances. So, the L.S.D. and a substance that may or may not be either a drug or a psychotropic substance, i.e., a neutral substance. The definition explicitly provides that such mixture may be "in whatever physical state", but as long as such a mixture contains one or more such drugs or substances, the same would constitute a "preparation" under Section (xx) of the NDPS Act.
(iii) Section 2 (xxiii) defines "psychotropic substance" to mean any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. The Schedule at Entry 4 includes L.S.D., L.S.D. 25. Therefore, there is no dispute about the L.S.D. being a psychotropic substance. However, Section 2(xxiii) includes not only a psychotropic substance specified in the Schedule but also a "preparation" of such substance or material included in the list of psychotropic substances specified in the Schedule. As noted earlier, the definition of "preparation" explicitly includes a mixture, in whatever physical state, containing one or more psychotropic substances. Thus, it is clear that a mixture of L.S.D. and blotter would constitute a psychotropic substance as defined under Section 2(xxviii) of the NDPS Act.
(iv) Section 2(xxiii) refers to a list of psychotropic substances specified in the Schedule. As noted earlier, the L.S.D. finds a ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 14 mention in Entry 4. Entry 111 of this Schedule refers to "salts and preparations of the above". This means Entry 111 refers to salts and preparations of the psychotropic substances listed in Entries 1 to 110. A preparation, as noted .
earlier, would include a mixture containing L.S.D. Thus, even the preparation of L.S.D. will amount to a psychotropic substance in terms of Section 2(xxiii) of the NDPS Act.
(v) Even the definition of "manufacture" in Section 2(x) includes making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances.
The expression makes it clear that even making a preparation (which includes a mixture) with L.S.D. or containing L.S.D. would constitute "manufacture" as defined under Section 2(x) of the NDPS Act.
(vi) Sections 2(xxiiia) and 2(viia) define "small quantity" and "commercial quantity" in relation to narcotic drugs and psychotropic substances. In terms of these definition clauses, the Central Government has issued a notification dated 19.10.2001, as amended from time to time. Entry 133 of this Notification specifically refers to L.S.D., L.S.D. 25. However, what is more, relevant is Entry 239, which refers to any mixture or preparation with or without a neutral material or any of the above drugs. From the context, it is apparent that the expression "drugs" would include both the narcotic drugs and psychotropic substances listed in Entries 1 to 238. Therefore, no contrary contention on this aspect was even raised before us. Thus, it is clear that the Notification contemplates not only the narcotic drugs and psychotropic substances but also any mixture or preparation of with or without neutral material of any of the narcotic drugs and ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 15 psychotropic substances listed in entries 1 to 238 of the Notification.
(vii) The Notification dated 19.10.2001, in the context of Entry 239, provides the mode of determining the small or commercial quantity .
of the mixture or preparation. It provides that lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture will have to be considered. The same also applies to the determination of commercial quantities. Note 4 below this Notification is most important because it states that the quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomer, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.
65. The statutory provisions and the scheme of the NDPS Act referred to above clearly provide, in more places than one, that the weight of the entire mixture and not just its pure drug content must be taken into account for determining whether the quantity is small, intermediate quantity or a commercial quantity. Moreover, the statement of object and reasons for introducing the amendment to the NDPS Act in 2014 explicitly clarifies the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not just the pure drug content.
66. This amendment was introduced after the decision of the Division Bench of the Supreme Court in E. Michael Raj v. Narcotics Control Bureau 2008 (5) SCC 161 which held that a pure drug content and not ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 16 the entire weight of the mixture being relevant is also a significant factor. Ultimately, E. Michael Raj (supra) was overruled by Hira Singh (supra). Hira Singh (supra) held that the legal position before E. Michael Raj (supra) that the entire quantity of the .
drug seized would be relevant to determine the quantum of punishment and not just the pure drug content. Thus, considering the legislative intervention after E. Michael Raj (supra) and the judicial overruling of E. Michael Raj (supra) by Hira Singh (supra), any argument that only the weight of pure L.S.D. is relevant to determining the quantum of punishment, would not sustain.
15. Hence, in view of the judgment passed in Hira Singh (supra) the submission that the only quantity of Codeine Phosphate is to be considered is not acceptable.
16. It was submitted that no offence punishable under the NDPS Act is made out because it is permissible to possess cough syrup containing Codeine Phosphate under the Drugs and Cosmetic Act.
This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Mohd. Sahabuddin v. State of Assam, (2012) 13 SCC 491: (2012) 4 SCC (Cri) 311: 2012 SCC OnLine SC 835 that where the huge quantity of the cough syrup was being stealthily transported without any documents, it cannot be said that the same will not fall within the purview of the NDPS Act. It was observed:
"7. The contentions of the appellants were fourfold. In the first place, it was contended that the cough syrups Phensedyl and Recodex are pharmaceutical products covered under the provisions of the Drugs and Cosmetics ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 17 Act, that the Rules prescribe the measure of dosage as 5 ml and that under Rules 65 and 97 of the Drugs and Cosmetics Rules, it is lawfully permissible to sell such cough syrups in the open market, which can also be transported, kept in stock and sold in the pharmaceutical .
shops as a prescribed drug under Schedule H at Serial No.
132. According to the appellants, such prescribed drugs under the Rules can contain codeine to the extent permissible. While referring to Rule 97, it was contended that Schedule H drugs containing the permissible extent of narcotic substance could be sold in retail on the prescription of a registered medical practitioner. The learned counsel, therefore, contended that each of the 100 ml bottles, seized from the appellants, satisfied the requirement prescribed under the above-referred to two Rules 65 and 97 and in the circumstances, there was no question of proceeding against the appellants under the NDPS Act.
8. By referring to Rules 61(1) and 61(2) of the Drugs and Cosmetics Rules, it was contended that the prescribed licence which is required for sale, stock, exhibit, offer for sale or distribution is a mandatory requirement under Section 27 of the Drugs and Cosmetics Act providing for the imposition of the penalty would be applicable only to manufacturers or those who sell, stock, exhibit or offer for sale or distribution of drugs and that a transporter, in particular, the driver and a khalasi was under no obligation to hold a licence under the Drugs and Cosmetics Act.
9. At the very outset, the abovesaid submission of the learned counsel is liable to be rejected, inasmuch as, the conduct of the appellants in having transported a huge quantity of 347 cartons containing 100 bottles in each carton of 100 ml Phensedyl cough syrup and 102 cartons, each carton containing 100 bottles of 100 ml Recodex cough syrup without valid documents for such transportation cannot be heard to state that he was not expected to fulfil any of the statutory requirements either under the provisions of the Drugs and Cosmetics Act or under the provisions of the NDPS Act.::: Downloaded on - 30/04/2024 20:35:27 :::CIS 18
10. It is not in dispute that each 100 ml bottle of Phensedyl cough syrup contained 183.15 to 189.85 mg of codeine phosphate and each 100 ml bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate. When the appellants were not in a position to explain as to whom .
the supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any other valid explanation for effecting the transportation of such a huge quantity of the cough syrup which contained the narcotic substance of codeine phosphate beyond the prescribed limit, the application for grant of bail cannot be considered based on the above submissions made on behalf of the appellants.
11. The submission of the learned counsel for the 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 the dictionary meaning means "contributing to cure of disease". In other words, the assessment of codeine content on a dosage basis can only be made only when the cough syrup is kept or 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 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 ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 19 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 NDPS 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 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."
17. It was laid down by the Division Bench of Punjab & Haryana High Court in Inderjeet Singh v. State of Punjab, 2014 SCC OnLine P&H 24990 that merely because there is a violation of the Drugs and Cosmetic Act, 1940, does not mean that a person would not be liable under the provisions of NDPS Act. It was observed:
39. Therefore, it follows that merely because the prosecution for a violation of the provisions of the D & C Act and the 1945 Rules framed thereunder entails some kind of penalty would not be a bar to the trial of cases in respect of which there has been a contravention of Section 21 of the NDPS Act a reference to which has been made above. A detailed procedure has been provided for the trial of cases under the NDPS Act. Section 36A of the NDPS Act relates to offences triable by the Special Court. Section 36B relates to appeal and revision. Section 36C relates to the application of the Code of Criminal Procedure to proceedings before a Special Court and Section 36D relates to transitional provision. In terms of Section 36C, the provisions of the Code of Criminal Procedure (including the provisions as to bail and bail bonds), are to apply to proceedings before a Special Court and for the purposes of the said provision, the Special Court is deemed to be a Court of Session and the person conducting a prosecution before a Special Court is deemed to be a Public Prosecutor. Section 4 of the Criminal Procedure Code relates to the trial of offences under the Penal Code, 1860 and other laws.
Sub Section (2) thereof envisages that all offences under any other ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 20 law that is law other than the Penal Code, 1860 which would include cases under the NDPS Act, shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, that is, the provisions contained after Section 4 but subject to any enactment for the time being in force regulating the manner or place .
of investigating, inquiring into, trying or otherwise dealing with such offences. For the trial of offences under the NDPS Act proper procedure and guidelines have been provided. Therefore, the procedure provided for the trial and prosecution of offences under the NDPS Act would not in any manner be hit by Article 14 of the Constitution; besides, even if it covers only a class of cases which are mentioned in the NDPS it would not be bad and the fact that in such cases the prosecution chooses as to which cases are to be tried under the special procedure would not affect the validity of the NDPS Act and the mere availability of two procedure does not vitiate one of them that is the special procedure under the NDPS Act. Besides, it is for the State to decide as to which of the two enactments that is, the NDPS Act or the D & C Act is the prosecution to be launched. It may also appropriately be noticed that the provisions of Section 80 of the NDPS Act envisage that the application of the D & C Act is not barred. Section 80 NDPS Act reads as under:--
"Application of the Drugs and Cosmetics Act, 1940 not barred.-- The provisions of this Act or the rules made thereunder shall be in addition to and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder."
40. This Court in the case of Vinod Kumar v. State of Punjab, (2013) 1 RCR (Cri) 428 considered the question as to whether a wholesale drug dealer, a retailer and their employees possessing proper and valid licence for dealing in drugs specified in Schedule C and Schedule C1 as well as drugs not specified in those Schedules of the D & C Act and the 1945 Rules can be held liable for an offence punishable under the NDPS Act. After making a reference to Section 80 NDPS Act, it was held that a person can very well be prosecuted both under the NDPS Act as well as under the D & C Act simultaneously for violation of the provisions of the said Acts. It was held that merely because a person is prosecuted for violation of the D & C Act that would not operate as a bar to prosecute him under the provisions of the NDPS Act. Rather if the offences made out under ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 21 the D & C Act also come within the scope of the provisions of the NDPS Act such person shall be prosecuted for possession of the contrabands violating the provisions of the NDPS Act. Both the Acts, it was held are independent and violation of one Act does not mean no violation of the other. Therefore, merely, because prosecution is .
launched and trial is conducted under the NDPS Act, which is considered a harsher and an onerous provision, the initiation of the proceedings cannot be said to be improper or bad. In case it is done for any extraneous reasons or circumstances or with a mala fide intention, the same would of course be subject to judicial scrutiny and review. In the circumstances, when there has been a contravention of a certain manufactured drug or a psychotropic substance and which falls within the purview of the NDPS Act and the NDPS Rules, the possession, sale and transportation of which is prohibited, or is being done without proper licence or with no proper authorization, the prosecution under the provisions of the NDPS Act would not be prohibited and it cannot be said to be in any manner illegal."
18. It was held in State of Punjab v. Rakesh Kumar, (2019) 2 SCC 466 : (2019) 1 SCC (Cri) 739: 2018 SCC OnLine SC 2651 that the direction issued by the High Court that the accused possessing the manufactured drugs should be prosecuted under the Drugs and Cosmetics Act and not under the NDPS Act is not sustainable. It was observed:
12. The counsel for the respondent-accused have strongly supported the judgment [Rakesh Kumar v. State of Punjab, 2018 SCC OnLine P&H 1960] of the High Court wherein it was held that, since the present matters deal with "manufactured drugs"
the present respondents should be tried for the violation of the provisions of the Drugs and Cosmetics Act, 1940.
13. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the NDPS Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of the ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 22 NDPS Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the NDPS Act are not in derogation of the Drugs and Cosmetics Act, 1940. This Court in Union of India v. Sanjeev V. Deshpande [Union of India v. Sanjeev V. .
Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri) 496], has held that : (SCC p. 16, para 35) "35. ... essentially the Drugs and Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase, etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further, the provisions of the Act operate in addition to the provisions of the 1940 Act."
(emphasis supplied)
14. The aforesaid decision in the Sanjeev V. Deshpande case [Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 :
(2014) 5 SCC (Cri) 496] further clarifies that the NDPS Act, should not be read in exclusion to the Drugs and Cosmetics Act, 1940. Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the respondent-accused amounted to a prima facie violation of Section 8 of the NDPS Act, they were charged under Section 22 of the NDPS Act.
15. In light of the above observations, we find that the decision rendered by the High Court holding that the respondent-
accused must be tried under the Drugs and Cosmetics Act, 1940 instead of the NDPS Act, as they were found in possession of the "manufactured drugs", does not hold good in law. Further, in the present case, the respondent-accused had approached the High Court seeking suspension of sentence. However, in granting the aforesaid relief, the High Court erroneously made observations on the merits of the case while the appeals were still pending before it.
19. It was held by the Delhi High Court in Mohd. Ahsan (supra) that cough syrup containing codeine phosphate will fall within the definition of an essential narcotic drug and will be covered under the NDPS Act. It was observed:
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 23"Section 9(1)(a)(va) of the NDPS Act provides as under:
"9. Power of Central Government to permit, control and regulate.-
(1) Subject to the provisions of Section 8, the Central .
Government may, by rules--
(a) permit and regulate--
xxx (va) the manufacture, possession, transport, import inter- State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs:
Provided that where, in respect of an essential narcotic drug, the State Government has granted a licence or permit under the provisions of Section 10 prior to the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, such licence or permit shall continue to be valid till the date of its expiry or for a period of twelve months from such commencement, whichever is earlier.
xxx"
43. The aforesaid sub-clause (va) was introduced by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (No. 16 of 2014), which came into effect on 01.05.2014. The said amendment was introduced subsequent to the judgment of the Hon'ble Supreme Court in Mohd. Sahabuddin's case (supra). A bare reading of the said amended provision shows that the same was introduced in the NDPS Act authorizing the government to permit and regulate the manufacture, possession, transport, import interstate, export interstate, sale, purchase, consumption and use of the "essential narcotic drugs". The term 'essential narcotic drugs' has not been defined in the NDPS Act. However, exercising powers under Section 9(1)(a)(va) of the NDPS Act, the Central Government vide notification dated 05.05.2015 (w.e.f. 05.05.2015) added Chapter-VA to The Narcotic Drugs and Psychotropic Substances Rules 1985 (hereinafter "NDPS Rules"). Rule 52A of the said Chapter provides as under:::: Downloaded on - 30/04/2024 20:35:27 :::CIS 24
"52A. Possession of essential narcotic drugs.--(1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules.
(2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in .
accordance with the provisions of these rules.
(3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely--
TABLE
Sl. Name of the essential narcotic drug Quantity
No.
(1) r (2) (3)
1. Morphine and its salts and all preparations 500 Milligrammes
containing more than 0.2 per cent of Morphine
2. Methyl morphine (commonly known as 2000 Milligrammes 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice
3. Dihydroxy Codeinone (commonly known as 250 Milligrammes Oxycodone and Dihydroxycodeinone), its salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs
4. Dihydrocodeinone (commonly known as 320 Milligrammes Hydrocodone), its salts (such as Dicodide, Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 25 admixture, extracts or other substances containing any of these drugs
5. 1-phenethyl-4-N-propionylanilino-piperidine Two transdermal (the international non-proprietary name of patches one each of which is Fentanyl) and its salts and 12.5 microgram per .
preparations, admixture, extracts or other hour and 25 substances containing any of these drugs microgram per hour:
Provided that the Controller of Drugs or any other officer authorised in this behalf by him may by special order authorise, in Form 3-B, any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above Table:
Provided further that such authorisation may be granted or renewed, for a period not exceeding three years at a time.
Explanation. --The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered medical practitioner in accordance with established medical standards and practices.
xxx"
(emphasis supplied)
44. Since, during the course of the hearing, the aforesaid provision was not brought to the notice of the court, the matter was listed for clarification. Subsequently, learned counsel appearing on behalf of the petitioner placed reliance on the judgment rendered by the division bench of the Hon'ble High Court of Allahabad in Vibhor Rana (supra). He further submitted that Rule 66 of the NDPS Rules would be applicable in the facts and circumstances of the present case, and not Rule 52A. Rule 66 of the NDPS Rules provides as under:
"66. Possession, etc., of psychotropic substances.--
(1) No person shall possess any psychotropic substance for any of the purposes covered under 1945 rules unless he is lawfully authorized to possess such substance for any of the said purposes under these rules: Provided that possession of a psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VII-A. ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 26 (2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by the Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person .
who is not so authorised under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person: Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time:
Provided further that an individual may possess the quantity of exceeding one hundred dosage units at a time but not exceeding three hundred dosage units at a time] for his personal long term medical use if specifically prescribed by a Registered Medical Practitioner.
(3) The research institution, hospital and dispensary referred to in sub-rule (2) shall maintain proper accounts and records in relation to the purchase and consumption of the psychotropic substance in their possession.
45. A bare perusal of the aforesaid rule clearly shows that the reliance placed on the same by the learned counsel appearing on behalf of the petitioner is misplaced. The aforesaid Rule 66 relates to psychotropic substances and therefore, is not applicable to 'codeine' which is admittedly a 'narcotic drug' under the NDPS Act.
46. As mentioned earlier, the term 'essential narcotic drugs' has not been defined under the NDPS Act but the table in Rule 52A, Sub-Rule (3), at serial no. 2, under the title "Name of essential narcotic drug" gives a description of Methyl Morphine (commonly known as 'Codeine'), which is an exact verbatim copy of Entry no. 35 in notification titled "Manufactured Narcotics Drug" (as contained in Government of India Notification No. S.O. 826(E) dated 14.11.1985 and S.O. 40(E) dated 21.09.1993 and S.O. no. 1431(E) dated 21.06.2011). A combined reading of Rule 52A of The ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 27 NDPS Rules and Entry no. 35, in the aforementioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its inclusion under the category of 'essential narcotic drug' under Section 9(1)(a)(va) of the NDPS Act .
1985. In our considered opinion, Rule 52A further regulates the manner of possession and other related activities enumerated therein, with respect to substances/preparations covered under the aforesaid Entry 35.
47. Section 21 of the NDPS Act provides for prosecution for contravention of any of the provision of the NDPS Act or any Rule made thereunder. Needless to say that Rule 52A clearly prohibits any person from possessing any 'essential narcotic drug' otherwise than in accordance with the provisions of the rules made thereunder. The amended provision i.e. Section 9(1)(a)(va) of the NDPS Act and the rules made thereunder clearly and unequivocally declare that any substance covered under the description given in the Table to Rule 52A(3) would be considered as an 'essential narcotic drug', even if the said substance is otherwise covered under The Drugs and Cosmetic Act including cough syrup containing codeine phosphate.
48. The aforesaid interpretation is supported by a judgment rendered by the Hon'ble Supreme Court in Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1, wherein it was held as follows:
"25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.
26. The Act does not contemplate the framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in ::: Downloaded on - 30/04/2024 20:35:27 :::CIS 28 Section 8(c). It only contemplates the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances.
20. Thus, a person can be prosecuted under the NDPS Act for .
the possession of the Drugs and Cosmetics Act provided that they fall within the purview of the former; hence, the submission that the accused cannot be prosecuted under the NDPS Act is not acceptable.
21. The total quantity of cough syrup found in the possession of the petitioner was 1.330 kg, which is a commercial quantity. Hence, the rigours of Section 37 of the NDPS Act will apply to the present case. The petitioner was found in possession of 11 bottles containing Rukscof Syrup and there is sufficient material to show that the petitioner is connected with the commission of offence. Further, there is no material to show that the petitioner would not commit the offence if he is released on bail. Hence, the petitioner is not entitled to bail.
22. Reliance was also placed upon the judgment of Kesar Singh (supra) but the said judgment does not apply to the present case, because the Court had found that the petitioner had a valid licence to sell, stock and exhibit the drugs. No such licence was shown in the present case. Hence, no advantage can be derived from the above-
cited judgment.
::: Downloaded on - 30/04/2024 20:35:27 :::CIS 2923. In Badsha SK (Supra), the petitioner was in jail for two years and four months. The trial of the case was yet to commence.
Hence, he was released on bail. In the present case, the petitioner has .
been in custody since 2.09.2023 and there is nothing on record to show that the trial is not being conducted by the learned Trial Court.
24. In view of the above, the petitioner is not entitled to bail.
Hence, the present petition fails and the same is dismissed.
25. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
( Rakesh Kainthla ) Judge 30th April, 2024 (ravinder) ::: Downloaded on - 30/04/2024 20:35:27 :::CIS