Chattisgarh High Court
Premchand Agrawal vs State Of Chhattisgarh on 28 February, 2017
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 964 of 2016
Judgment reserved on : 12.01.2017
Judgment delivered on : 28.02.2017
1. Premchand Agrawal, S/o. Late Badri Prasad Agrawal, Aged About
65 Years.
2. Sudeep Agrawal, S/o. Shri Premchand Agrawal, Aged About 35
Years.
Both R/o. Durpa Road, Korba, Police Station Korba, District Korba,
Chhattisgarh, Civil & Revenue District Korba, Chhattisgarh
---- Applicants
Versus
State Of Chhattisgarh, Through The Station House Officer, Police
Station Kusmunda, District Korba, Chhattisgarh.
---- Respondent
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For Applicants : Mr. Shailendra Dubey, Advocate For Respondent/State : Mr. Anant Bajpai, Panel Lawyer
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Hon'ble Shri Justice Goutam Bhaduri C.A.V. Judgment 28.02.2017
1. The instant revision is against the order dated 27.09.2016 passed by the Special Judge (N.D.P.S. Act), Korba, wherein an application filed by the petitioner to enlarged them bail under Section 167(2) of Cr.P.C. with respect to the Crime No.113/2016 registered at Police Station Kusmunda, District Korba, was rejected.
2. The brief facts of this case is that on 26.07.2016, the applicants were arrested for an offence committed under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 with an 2 allegation that they were found in possession of the Narcotic Drugs, Corex Syrup with other tables in huge quantities, which are mentioned as under :
(a) From applicant No.1 Premchand Agrawal :
(i) SPASMO PROXYONE PLUSE CAPSULE-50 strips, 8 capsules in each strips
(ii) ALMAX 0.5 TAB - 65 strips, 10 tablets in each strips
(iii) NITROSUN 10 tablet - 20 strips, 10 tablets in each strips
(iv) CYREX COUGH SYP (100 ml each bottle) - 145 bottle
(v) BIOREX COUGH SYP (100 ml each bottle - 4 bottle
(vi) Cash amount - Rs. 2700/-.
(b) From applicant No.2 Sudeep Kumar Agrawal from the place of occurrence : -
(i) SPASMO PROXYONE PLUSE CAPSULE-20 strips, 8 capsules in each strips (ii) SPAS POKRAN PLUS CAPSULE - 35 number (iii) ALMAX 0.5 TAB - 20 strips, 10 tablets in each strips (iv) NITROSUN 10 tablets each - 8 strips (v) CYREX COUGH SYP (100 ml each bottle) - 10 bottle (vi) COREX COUGH SYP (100 ml) - 8 bottle (vii) BIOREX COUGH SYP (100 ml each bottle) - 5 bottle (viii) Cash amount - Rs. 3050/- (ix) Scooter, Honda Aviator bearing No.C.G. 12 AJ 8257
From the Bedroom of Applicant No.2 Sudeep Kumar Agrawal :-
(i) SPASMO PROXYONE PLUSE CAPSULE - 10 strips, 8 capsules in each strips (ii) ALMAX 0.5 TAB - 20 strips, 10 tablets in each strips (iii) NITROSUN 10 tablets each - 10 strips (iv) CYREX COUGH SYP (100 ml each bottle) - 100 bottle (v) COREX COUGH SYP (100 ml) - 45 bottle
3. Subsequently, they were produced before the Court on 27.07.2016 and thereafter they were sent to Jail. Thereafter, an application was preferred under Section 167(2) of Cr.P.C. and it was stated that the limitation for filing of the charge sheet is 60 days and since the charge sheet has been filed on 26.09.2016, which would be 62 days, therefore, the applicants were entitled for the benefit of Section 167(2) of Cr.P.C. It was predominantly stated that since the 3 said contraband having been seized, the quantity of the contraband would come within the small quantity and the maximum punishment may extend to one year, therefore, the applicants are entitled for bail by application under Section 167(2) of Cr.P.C.
4. Learned State counsel opposes the prayer for grant of bail.
5. Perused the order and the respective case diary. The submission of the applicants that the presence of drug in medicine would amount to small quantity, if are calculated separately cannot be appreciated in view of the amendment which was carried out vide notification dated 18.11.2009, which is reproduced herein below.
Notification dated 18.11.2009 has replaced the part of the Notification dated 19.10.2001 and reads as under :
"In the Table at the end after Note 3, the following Note shall be inserted, namely :
(4) 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 isomers, 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."
6. In view of such notification, the composition of salt and the presence of Narcotic Drug and Psychotropic Substances cannot be calculated separately. If the entire quantity of Drugs so seized from applicants are examined, it would lead to show that the seizure of the Drug i.e. the medicines was over and above the small quantity as specified in the Schedule.
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7. The aforesaid proposition is further affirmed in case of Harjit Singh v. State of Punjab1. Therefore, in the considered opinion of this Court, the percentage of Drug cannot be separately calculated and prima facie would lead to form an opinion that the Drugs so seized were of commercial quantity.
8. In view of the aforesaid discussions, having prima facie found that the entire medicinal drug were more than small quantity by application of notification. It would be relevant to quote Section 36- A(4) of N.D.P.S. Act, 1985 which reads as under :
"36-A(4) - In respect of persons accused of an offence punishable under section 19 or section 24 or section 27-A or "for offences involving commercial quantity" the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days".
9. Since the argument has been advanced that the Drugs seized were less than the commercial quantity and as such the applicants are entitled for bail is devoid of any substance, when the offence is dealt with respect to possession of commercial quantity of drugs. In N.D.P.S. Act, 1985 the reference in sub-section (2) of section 167 of the Criminal Procedure Code, 90 days is substituted by 180 days.
10. Therefore, after perusal of entire facts the charge sheet in this case having been filed within 180 days i.e. on 26.09.2016. It is held to have been filed well within time, as such, the applicants are not entitled to any benefit for bail by virtue of Section 167(2) of Cr.P.C. read with Section 36-A(4) of NDPS Act.
1 (2011) 4 SCC 441 5
11. In a result, the petition has no substance and accordingly it is dismissed.
Sd/-
(Goutam Bhaduri) Judge Ashok