Madhya Pradesh High Court
Rajendra Bandil @ Raju Bandil vs The State Of Madhya Pradesh Thr on 6 April, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRR. No. 28/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No. 28/2017
Rajendra Bandil @ Raju Bandil
Versus
State of M.P.
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Shri Sankalp Sharma, learned counsel for the applicant.
Shri Neelesh Tomar, learned Panel Lawyer for the
respondent/State.
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ORDER
(06.04.2017) This criminal revision has been preferred by the applicant under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') against the order dated 01.12.2016 passed by Special Judge, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), Gwalior in connection with Crime No.289/2016 pertaining to Police Station Kotwali, District Gwalior whereby the application filed by the applicant under Section 451 of Cr.P.C for release of seized Phensedyl Syrup, has been rejected.
2- Facts leading to filing of this revision petition are that on 19.10.2016, at about 14:10 pm, Assistant Sub Inspector-Mr. Veerendra Singh, Police Station Kotwali, received an information from informer that one loading vehicle bearing registration No. MP07 G 6538 is standing in front of pharma agency near Sehkari Bazar, Lashkar, -( 2 )- CRR. No. 28/2017 Gwalior. It was also informed that in this vehicle, Gopal Gupta proprietor of pharma agency is trying to send bottles of phensedyl cough syrup having codeine phosphate in it by assistance of his workers and loading these medicines into the loading vehicle. After completion of necessary formalities, Mr. Veerendra Singh along with Police Party reached the spot as informed by the informer and raided the vehicle bearing registration No. MP07 G 6538 which was standing in front of pharma agency. Police authority found that one person namely Kamal Kishor was sitting at steering wheel while the other co-accused namely Ateek Ahemad and Raja Bandil were sitting over the loaded vehicle. All these persons were taken off from the vehicle and they were inquired about the goods loaded in the vehicle. The co-accused-Ateek Ahemad stated that 30 begs belongs to him whereas present applicant-Raju Bandil stated that 30 begs belongs to him. On search, 60 begs having 3-3 cartoon , each, having 100-100 bottles of phensedyl syrup containing 100 ml of syprup, total value of Rs. 18,00,000/-, were seized. It was alleged that although the phensedyl is a medicine, even than the same is used for intoxication purpose and the owner of pharma agency Gopal Gupta had given the said drugs to the two person for illegal sale. Police registered a case bearing crime No. 289/2016 under section 8/20 & 22 of NDPS, Act 3- Applicant Rajendra Bandil moved an application under section 451 of CrPC for releasing the goods on supurdginama on the -( 3 )- CRR. No. 28/2017 ground that he has an authorized wholesaler having license and authorization to transport in the drugs which have been seized by the police. The seized goods are perishable in nature and if the goods are not released, the same shall cause financial loss to the applicant. The said application was dismissed by the Special Judge, NDPS, Act, Gwalior, for the reason that syrup was not used for the medicine purpose and the FSL report of the seized syrup is awaited and if it is released in favour of the applicant, the same shall increase such type of offences.
4- Learned counsel for the applicant submits that such presumption on the part of Special Judge is erroneous and infact the Phensedyl cough syrup is made by M/s Abbott Health Care Pvt. Ltd. under license, as permissible limit of codiene in it, which as per notification of Union of India dated 14.11.1995 No. S.0.826 (E) categorically keeps out the phensedyl from the purview of NDPS, Act. The applicant holds license in the category No. C, C(1)X of license No. 20B/272/56/16 issued by licensing authority of Food and Drugs Administration, Gwalior. The applicant has produced the copy of invoice dated 19.10.2016, issued by pharma agency Gwalior in the name of the firm of applicant KDM Enterprises Gwalior which indicates the sale of phensedyl new cough lincuts 100 ml. It is his case that since he had purchased the aforesaid drugs from a licencee seller and the entire incident took place outside the premises of license holder, therefore, he was entitled to transport such -( 4 )- CRR. No. 28/2017 medicine. Therefore, he is entitled to get interim custody of the same in terms of the provisions contained under Sections 451 & 457 of Cr.P.C. He also submitted that the property seized is drug and it has a self life. Therefore, there is a possibility of its decay and being rendered useless, therefore, it should be handed over to the custody of applicant.
5- The applicant placed reliance on the order dated 15.10.2014 passed by Allahabad High Court in case of Ashok Kumar Vs. Union of India, in Criminal Appeal No. 2976/2014 , wherein it has been held that phensedyl cough syrup is a schedule 'H' drug under the Drugs and Cosmetic Act and it is governed under exception provided under Entry No. 35 of Central Government Notification dated 14.11.1985 issued under Section 2 (XI) (B) of the NDPS, Act, and therefore, cannot be construed as a narcotic drug or manufactured drug, hence, Section 8 of NDPS would not attract. In view of this judgment, it is submitted that admittedly phensedyl cough syrup, contains codeine with the prescribed quantity, but the Special Judge erred in denying the interim custody of seized drug only on the ground that, if the drug is released, then possibility of increasing number of offences will be increased. 6- To the contrary, learned Panel Lawyer for the State supported the impugned order and submitted that the phensedyl cough syrup is widely used for the purpose of intoxication by those who are addicted to Narcotic Drugs and Psychotropic Substances; therefore, no leniency should -( 5 )- CRR. No. 28/2017 be shown to the applicant, who in the garb of medical agency, is supplying contraband to the drug addicts. 7- I have considered rival submissions canvassed by the learned counsel for the parties, it is apparent that for the purpose of the investigation, the police party has already taken the samples for testing and it has been sent to the FSL for chemical analysis and the drug has an expiry date of January 2018, and thereafter, it will be useless. In the case of Sunderbhai Ambalal Desai Vs. State of Gujrat, (2002) 10 SCC 283 , the Hon'ble Apex Court has held that there is no use of such seized like liquor, narcotics drugs kept at the police station or kept for a long period in a property room, the Magistrate concerned should take immediate action for seeing that power under Section 451 of Cr.P.C are properly and promptly exercised in disposing of it after necessary compliance.
8- In these circumstances, the application under Section 451 of Cr.P.C can be allowed, appears to be met out in the instant case as the material sought to be claimed, is perishable in nature and would become obsolete, if permitted to remain seized. While observing this fact, this Court can not turn its eye blind towards the fact that the material may be used for intoxication and the quantity seized is huge. Accordingly, it would be appropriate to impose certain conditions with respect to usage of said material.
9- In view of above discussion, but without expressing any view on the merits of the case, the instant revision petition is allowed. The order -( 6 )- CRR. No. 28/2017 dated 01.12.2016 is set-aside, so far as it relates to the present applicant. The respondent is directed to release the goods in favour of the applicant with the following conditions:
1. The applicant shall prepare the inventory of the material, its composition and the expiry date.
2. The applicant shall maintain a separate register for the material released in his favour in furtherance to place order in which the outward entry shall be recorded meticulously.
3. The applicant shall ensure reservation of each supply/order/voucher/memo which deals with the sale of released material including complete particulars of purchaser and the cash/cheque/RTGS in which selling price has been received.
4. The applicant shall keep register available for the purpose of inspection by the respondent and will cooperate in giving of desired information and documents relating to its sale.
5. The applicant shall furnish a personal bond and one solvent surety of the amount equivalent to the cost of material to the satisfaction of the trial Court with the condition that, when the court directs, he will be ready to pay the said amount.
(S.K.Awasthi) Aman Judge