Himachal Pradesh High Court
Mandeep Singh vs State Of Himachal Pradesh on 16 August, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 987 of 2017 Decided on: 16th August, 2017 .
__________________________________________________________________ Mandeep Singh ....Petitioner.
Versus State of Himachal Pradesh ...Respondent.
Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 For the petitioner: Mr. T.S. Chauhan, Advocate.
For the respondent: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy.
AG.
_________________________________________________________________ Chander Bhusan Barowalia, Judge (oral).
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 33 of 2017, dated 24.04.2017, under Section 21 of Narcotic Drugs and Psychotropic substances, Act, (hereinafter referred to as "the Act"), registered at Police Station Parwanoo, District Solan, H.P.
2. As per the petitioner, he is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.
3. Police report stands filed. As per the prosecution, on 24.04.2017, around 09:00 p.m., when the police personnel were in 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -2-civil dress present at place near TTR Ammunition, Parwanoo, for random checking, they stopped a motorcycle having no number plates. The motorcyclist was carrying a carry bag, which on .
checking contained prohibited strips of Nitrosun-10 and vials of Corex Cough Syrup. The motorcyclist revealed his name as Mandeep Singh (petitioner herein) and he could not produce any valid document for keeping these prohibited drugs. In total, 35 strips of Nitrosun-10 were recovered and total tablets were 700.
On the other hand, total recovered vials of Corex Cough Syrup were fifteen, each of 100 ml. Police completed the codal formalities and recorded the statements of the witnesses. The petitioner was booked for commission of offence punishable under Section 21 of the Act. The report of chemical analyst received from SFSL, Junga, revealed that each tablet of Nitrosun-10 contained Nitrazepam 9.97 mg and each 100 ml vial of Corex contained Codeine 2.006 mg per/ml. As per the prosecution, the petitioner is very clever person and in case he is enlarged on bail, he may flee from justice and also tamper with the prosecution evidence. Lastly, the prosecution has prayed that the bail application of the petitioner may be dismissed.
4. Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. The learned counsel for the petitioner has ::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -3- placed reliance on a decision dated 17.07.2017 of Co-ordinate Bench of this Hon'ble High Court, rendered in Cr.MP(M) No. 792 of 2017, titled Surjeet Kumar vs. State of H.P. Conversely, the .
learned Additional Advocate General, has argued that the petitioner has committed a serious crime and there is possibility that he may tamper with the prosecution evidence, so bail application may be dismissed.
5. I have gone through the rival contentions of the parties and the police report in detail.
6. In Cr.MP(M) No. 792 of 2017, titled Surjeet Kumar vs. State of H.P., the Co-ordinate Bench of this Hon'ble High Court, has held as under:
"3. Perusal of the record as well as status report reveals that police intercepted vehicle bearing No. HP-72-2935 at Una on 2912.2016. On checking, police recovered gunny bag containing two boxes having 12000 tablets namely "lomotil". Police also recovered 20 boxes having 2880 capsules namely "Spasmo Proxyvon plus". Since, bail petitioner failed to produce any permit to keep aforesaid tablets, FIR as stated above, came to be registered under Section 22, 29-61-85 of the Act. It also emerge from the record that petitioner is in judicial custody since 29th December, 2016. Respondent-State has also made available report of FSL Junga, relevant portion, whereof is reproduced as under:-
"Results of the examination LOMOTIL.
Various scientific tests such as physical identification, chemical and chromatographic & spectrophotometric analyses were carried out in the laboratory with the exhibit stated as Lomotil under reference, with ::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -4- representative & homogeneous sample. The above tests performed, indicated the presence of Diphenoxylate hydrochloride in the exhibit. On its quantitative analysis, Diphenoxylate hydrochloride was found to be 2.492 mg per tablet. The result obtained is given .
below.
The exhibit stated as Lomotil is a sample of Diphenoxylate hydrochloride tablets.
SPASMO PROXYVON PLUS Various scientific tests such as physical identification, chemical, chromatographic & spectrophotometric analyses were carried out in the laboratory with the exhibit stated as spasmo proxyvon plus under reference, with representative & homogeneous sample. The above tests performed, indicated the presence of Dicyclomine r hydrochloride, Tramacol hydrochloride & Acetaminophen in the exhibit. The result thus obtained is given below:
The exhibit stated as Spasmo Proxyvon plus is neither a sample of narcotic Drugs nor Psychotropic Substances as mentioned in the schedules and notifications of NDPS Act, 1985."
In the judgment (supra) the Co-ordinate Bench of this Hon'ble High Court has further held as under:
"12. Careful perusal of aforesaid entry at Sr. No. 58 in the notification, as referred hereinabove, clearly suggests that Diphenoxylate and its salts and preparations, admixture, extracts or other substances containing any of these drugs are manufactured narcotic drugs, but save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. Mr. Chandel, while referring to the report submitted by SFSL, contended that drugs namely Diphenoxylate hydrochloride has been found to be 2.5 mg per tablet and similarly quantity of Atropine 0.025 mg i.e. 1% of dose of Diphenoxylate hydrochloride has been also found in ::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -5- each tablet, meaning thereby tablet namely 'lomotil' having Diphenoxylate hydrochloride 2.5 mg does with 0.025 mg of Atropine sulphate does not fall under the definition of manufactured narcotic drugs and as such, does not come under the preview of NDPS Act.
.
13. At this stage, it would be profitable to reproduce Section 2(xi) of the Act, herein:-
"Manufactured drugs" means:-
(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 r notification in the official Gazette, declare to be a manufactured drugs;
14. Careful perusal of aforesaid provisions of law suggest that all the coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate any other narcotic substance or preparation which central government may notify in the official Gazette would be termed as manufactured drugs, but it further suggests that it will not include any narcotic substance or preparation which the central government may having regard to the available information or to a decision, if any, under any International Convention by notification in the Official Gazette, declared not to be manufactured drugs. Aforesaid provisions of law, clearly suggest that narcotic substance or preparation declared by central government by issuing notification in the official gazette shall only be deemed to be manufactured drugs save and except of coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, as prescribed under Section 2(xi) of the Act. Aforesaid provisions of law i.e. Section 2(xi)(b), certainly suggest that narcotic substance or preparations not included in the notification, if any, issued by the ::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -6- central government declaring certain narcotic substance or preparation to be manufactured drugs shall not be considered as manufactured drugs in terms of Section 2(xi) of the Act. In the instant case, entry made at Sr. No. 58 of notification, as referred above, .
certainly suggest that Diphenoxylate hydrochloride and its slats and reparation and admixture, extracts or other substances containing any of these drugs are to be treated as manufactured narcotic drugs save and except preparations of diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate.
... ... ... ... ...
17. The Apex Court in Prasanta Kumar r Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail.
(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."::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -7-
7. Similarly, in Cr.MP(M) No. 499 of 2017, titled Sunil Kumar vs. State of H.P., a Co-ordinate Bench of this Hon'ble High Court has further held as under:
.
"5. True it is that in State of Himachal Pradesh versus Mehboob Khan 2013 (3) Him.L.R. (FB) 1834, a larger Bench of this Court, in a case of recovery of charas has held that presence of tetrahydrocannabinol and cystolithic hair reveals that sample contains the resin contents and as such, sufficient to hold that the sample is of charas. The resin obtained from the cannabis plants may be in 'crude' or 'purified' form and charas is hand made drug made from the extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of the cannabis is to be considered as a contraband article. However, in the case in hand, whether the remaining contents of 'Corex' have also to be treated as codeine phosphate or not need further consideration and as such it is not deemed appropriate to go to this aspect of the matter at this stage and rather the same is left open to be considered at an appropriate stage during the course of trial. The facts, however, remain that the present is a case of recovery of narcotic drug i.e. codeine phosphate 7.4 grams, which is small quantity and as such, rigors of Section 37 of the Act are not attracted in the case in hand."
8. In the present case, taking into consideration the facts which has come on record, including the fact that the petitioner is not in a position to tamper with the prosecution evidence and flee from justice and also keeping in view the law, as discussed hereinabove, and over all circumstances of the case, which have come on record, including the age of the petitioner, this Court finds the instant case to be a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his ::: Downloaded on - 18/08/2017 21:51:37 :::HCHP -8- favour. Accordingly, the present petition is allowed and it is ordered that the petitioner, who has been arrested by the police of Police Station Parwanoo, District Solan, H.P., in connection to FIR .
No. 33 of 2017, dated 24.04.2017, under Section 21 of the Act, he be released in this case on bail, on his furnishing personal bond in the sum of `50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions:
(i) That the petitioner will appear before the learned Trial Court as and when required.
(ii) That the petitioner will not leave India without prior permission of the Court.
(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.
9. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
16th August, 2017 Judge
(virender)
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