Madhya Pradesh High Court
Vakeel Ahmad vs The State Of Madhya Pradesh on 1 December, 2020
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH JABALPUR
Miscellaneous Criminal Case No. 40035 / 2020
Vakeel Ahmad
Vs.
State of Madhya Pradesh
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Present : Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Shri Dhruv Kumar Melani, learned counsel for the applicant.
Shri Anshul Mishra, learned Panel Lawyer for the
respondent/State.
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ORDER
(01.12.2020) The applicant has filed this petition under Section 482 of Cr.P.C. for quashing of the FIR registered at Police Station Vindhyanagar, District Singrauli for offence punishable under Sections 5 r/w 13 of M.P. Drugs Control Act, 1949, Section 50 of Disaster Management Act, 2005, Sections 269, 270, 328, 188 r/w 34 of IPC and Section 8 r/w 21 of NDPS Act. After investigation, charge-sheet has been filed. It has also been prayed to quash all the criminal proceedings emanated against the applicant from Crime No.73/2020.
2. Facts giving rise to this petition, in brief, are that the applicant is running a medical shop. Two persons namely, Sunil Dubey and Ashok Singh purchased 240 bottles of Onrex Syrup containing Codine Phosphate 2 (Narcotic Drugs and Psychotropic Substances), each bottle contains 100 ml syrup along with 20 Packets of Alprasek 0.5 tablet, 20 Packets of Simplex C+ tablets, 02 Packets of Evil Injection. Except Evil Injection all other manufacturing drugs contains Narcotic Drugs and Psychotropic Substances. Police after receiving tip-off intercepted Motor Cycle bearing registration No.MP 66 MB 7378 riding by both the co-accused persons Sunil Dubey and Ashok Singh and seized abovementioned substances from their possession and when police asked for license or valid authority for possessing those substances, both the persons were failed to submit the documents for keeping the abovementioned Narcotic Substances. On inquiry they furnished information that they have purchased all these material from the shop of the applicant. On the basis of above information, police implicated the applicant in this case and after investigation charge-sheet has been filed.
3. Learned counsel for the applicant submits that the applicant has falsely been implicated in this case. The applicant neither sold these medicines to both the co-accused persons, nor there is any incriminating material seized from the possession of the applicant to implicate the applicant in this case. Applicant is having license for running the medical shop. It is submitted that, if there is any offence made out against the applicant, it is for the offence under Section 5/13 of the M.P. Drugs Control Act. Learned counsel for the applicant further 3 submits that the prosecution did not follow the mandate of Section 50 of the NDPS Act and other related provisions during investigation. The prosecution cannot be initiated without having a permission from the State Government in relation to the offence under Section 5 r/w 13 of M.P Drugs Control Act. It is further submitted that the applicant had made a complaint to the Superintendent of Police in this regard, but no action had been taken on that complaint and falsely implicated the applicant in this case. Thus, it has been prayed by learned counsel for the applicant that the criminal proceedings arising out of Crime No.73/2020 registered at Police Station Vindhyanagar, District Singrauli against the applicant be quashed.
4. Learned Panel Lawyer for the respondent/State, on the other hand, opposes the aforesaid prayer made on behalf of the applicant and prays for dismissal of the petition.
5. Having heard learned counsel for the parties, perused the documents filed along with this petition, as well as the documents collected during investigation of Crime No.73/2020 registered at Police Station, Vindhyanagar, District Singrauli. It is not disputed that the co- accused were apprehended with the Narcotic Drugs and Psychotropic Substances without having any valid license or authority and it is also not disputed that they furnished information that they have purchased this huge amount of drugs from the Medical Store of the applicant. 4 Even though learned counsel for the applicant submits that the applicant had never sold this huge amount of medicines to both the co-accused persons, but on perusal of the case diary it appears that, there is information furnished by the co-accused persons that from where they had purchased the drugs. If applicant says that he had not sold the Narcotic Drugs and Psychotropic Substances to both the co-accused persons, it is a matter of evidence. The applicant remained absconded and not furnished any documents before the Investigating Officer and when the Investigating Officer filed a charge-sheet after implicating the applicant on the basis of evidence collected during investigation, then the applicant raised the above defence. No doubt, it may be a defence of the applicant that he is running a Medical Store and not sold the huge amount of Narcotic Drugs and Psychotropic Substances to both the co- accused Persons, he is having an opportunity to raise that defence before the learned trial court.
6. So far as seized quantity of Narcotic Drugs and Psychotropic Substances is concerned, after perusal of the whole evidence, it is prima facie reflected that "commercial quantity" of Narcotic Drugs and Psychotropic Substances seized from the possession of both the co-accused Sunil Dubey and Ashok Singh. As it is alleged that 240 bottles of Onrex Syrup, each containing 100 ml, were seized from the possession of the co-accused persons, i.e. 24 5 litres, which comes under "commercial quantity."
7. Hon'ble Apex court in the case of Hira Singh and Ors. vs. Union of India (UOI) and Ors. reported in AIR 2020 SC 3255, overruled its previous case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau MANU/SC/7405/2008 and held that "While determining the small or commercial quantity in relation Narcotic Drugs and Psychotropic Substances in a mixture with one or more neutral substance(s), it includes the weight of the neutral substance(s) also and not only the actual content by weight of the offending drug."
In the present case 24 liters of mixture containing codine phosphate seized and that can easily be categorized as "commercial quantity".
8. So far as contention raised by the applicant with regard to mandate of Section 50 of the NDPS Act is concerned, this court is not inclined to discuss on merits of the case minutely at this stage, but wants to refer the judgment of State of Punjab vs. Baldev Singh, reported in (1999) 6 SCC 172. In that case the Hon'ble Apex Court decided the ambit scope of Section 50 of the NDPS Act and other related provisions and in para 3 thereof held as under :-
"3. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by 6 drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti- drug justice is a criminal dimension of social justice. The United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention.
Later on, recently the High Court of Bombay in the case of Rhea Chakraborty vs. Union of India, Criminal Bail Application (STAMP) No.2389/2020 decided on 07.10.2020 further discussed about drugs business and while disposing of bail application of Rhea Chakraborty (supra), Bombay High Court referred the judgment of Baldev Singh (supra) in para 46 and 47, which reads as under :-
46. The Hon'ble Supreme Court has further observed that despite the stringent provisions of the NDPS Act, 1985, as amended in 1988, the drug business was booming, addicts were rapidly rising, crime with its role in narcotics was galloping and drug trafficking network was ever-growing. While interpreting various provisions of the statute, the object of the legislature is required to be kept in view, but, at the same time the interpretation has to be reasonable and fair.
47. The situation has not changed since 1999 when 7 these observations were made by the Hon'ble Supreme Court. In fact, the situation has become worse. Therefore, these observations apply to today's scenario with more force.
9. Learned counsel for the applicant submitted that no offence under Section 8 r/w 21 of NDPS Act is made out against the applicant.
Perused Section 8(c), Section 21 and Section 22 of the NDPS Act, which reads as under :-
Section 8.Prohibition of certain operations.- No person shall-
(a) ....
(b) ....
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-
State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for......
Section 21. Punishment for contravention in relation to manufactured drugs and preparations. -Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactuered drug shall be punishable-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than 8 commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
[22. Punishment for contravention in relation to psychotropic substances.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in 9 the judgment, impose a fine exceeding two lakh rupees.
10. After perusal of above sections, at this stage this court is not inclined to discuss about what offence is made out against the applicant, but after perusal of the whole evidence collected during investigation in the abovementioned crime number, this court is of the considered opinion that prima facie a substance found against the applicant. After investigation charge-sheet has been filed and the applicant is free to raise his defence before the trial court. In the above circumstances, this court is not inclined to quash the FIR and related criminal proceedings of Crime No.73/2020 registered at Vindhyanagar, District Singrauli.
11. With the aforesaid discussions, this petition sans merit and the same is hereby dismissed. There shall be no order as to cost.
12. Interlocutory application, if any is pending, the same stands dismissed.
(Vishnu Pratap Singh Chauhan) Judge ss/-
Digitally signed by SWETA SAHU Date: 2020.12.03 15:36:39 +05'30'