Jharkhand High Court
Suresh Prasad Keshri vs The State Of Jharkhand ... ... Opposite ... on 2 September, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Miscellaneous Jurisdiction)
B.A .No. 7126 of 2022
Suresh Prasad Keshri ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Petitioner : Ms. Sunita Kumari, Advocate
For the State :Mrs. Priya Shrestha, APP
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nd
Order No. 06 /Dated: 02 September, 2022
Heard Ms. Sunita Kumari, the learned counsel for the petitioner and Mrs. Priya Shrestha, the learned APP for the State.
The learned counsel for the petitioner has submitted that the petitioner is not at all concerned with the seized scooty and alleged recovered cartoon of 60 bottles of cough syrup. The FIR itself shows alleged recovered vehicle was driven by co- accused Md. Arif and he disclosed his business of medicine along with other co- accused Raju Sharma. The only allegation against the petitioner was that he was sitting behind the co-accused on the scooter and holding a cartoon. Due to friendship and good faith with indeed to help the accused he was only holding the cartoon without knowing what materials were contained inside the cartoon. Further as per instruction petitioner was called for some query by the police authority and accordingly as a good citizen he has reached there and he was arrested from the spot.
The learned counsel for the petitioner has also pointed to the FIR and tried to point out contradictions or inconsistencies about where the accused persons were standing and when they were fleeing and regarding the holding of cartoons. She submitted that the cartoon was sealed and that this petitioner was merely holding it. She further says Shastri Nagar is the place of the petitioner and so it was natural for him to be at Shastri Nagar. She has also submitted that there were several adjacent houses near the place of occurrence, but no independent witnesses were considered when recovery was made. She has also pointed out that on perusal of the available record no antecedent of the petitioner has been found.
The learned counsel for the petitioner has cited bail order in B.A. No. 9657 of 2021 dated 20.12.2021 by a coordinate Bench of this Court and submitted that in that case petitioner was an employee who was found in possession of 144 bottles of RC Kuff cough syrup. The applicant was carrying the said medicine at the behest of the co-accused in this cited case and was not in conscious possession that these drugs were intoxicant or were psychotropic substance. In this case the coordinate -2- Bench had granted bail to the petitioner and counsel submits that this cited case has similar parallels with the case on hand. The learned counsel for the petitioner then referred to the case of "Binod Kumar alias Binod Kumar Bhagat Vs. State of Bihar" reported in (2018) 14 SCC 199 and submitted that 4000 bottles of Corex cough syrup containing codeine were recovered from godown being managed by the appellant. In the cited case the appellant was only an employee. In this case the Hon'ble Apex Court had allowed or granted bail to the appellant therein. The learned counsel points out that in both the cited cases the quantity referred to is 144 bottles of the alleged substance and 4000 bottles of the alleged substance which is significantly higher than in the the current case on hand.
The learned counsel for the petitioner has further referred to section 37 1(b) (2) of NDPS Act, which reads as under:
"37(1)(b)(ii).... where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail".
The learned counsel then submitted that based on the aforesaid grounds or reasons, the Hon'ble Court can take a decision as to the guilt or involvement of the petitioner in the incident based on the facts and circumstances. Further counsel prays that for the purpose of bail the petitioner while having no criminal antecedents has already been in custody from 29.04.2022.
The learned counsel for the State has, on the other hand opposed the bail application and argued that the contents of the package or the bottles recovered, would come to commercial quantity. Further the learned APP has pointed out second supplementary counter affidavit paragraph nos. 13,14,15 and 16 and submitted that Codeine Phosphate syrup; is a solution/mixture of Manufactured Drugs with Codeine Phosphate and other Inactive Substance. The observation made in judgment of "Hira Singh and Another versus Union of India and Another"
reported in (2020) 20 SCC 272, the Hon'ble Supreme Court in para nos. 12, 12.1 and 12.2 has observed as under:
"12. In view of the above and for the reasons stated above, reference is answered as under:
12.1 The decision of this Court in the case of E. Micheal Raj taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law. 12.2 In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into -3- consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substance".
In view of the above decision/order, seized Codeine Phosphate solution/mixture of Codeine Phosphate with other Inactive Substance would be used for the purpose of calculating "small Quantity and Commercial Quantity". The present case quantity of seized drug containing phychotropic substance is 60X100 ml = 6000 ml = 6 liters, approximately 6 Kg, which is much more than commercial quantity.
The learned counsel for the State has also cited Para 10.4 of the judgment in the case of "Hira Singh and Another"(supra) which reads as under:
"10.4 Even considering the definition of 'manufacture", "
manufactured drug" and the " preparation" conjointly, the total weight of such " manufactured drug" or " preparation", including the neutral material is required to be considered while determining small quantity or commercial quantity. If it is interpreted in such a maner, then and then only, the objects and purpose of the NDPS Act would be achieved. Any other intention to defeat the object and purpos of enactment of the NDPS Act viz. to the Act is deterrent".
The learned counsel for the State, learned APP sought to distinguish bail order passed in B.A. No. 9657 of 2021 dated 20.12.2021 passed by a coordinate Bench of this Court, cited by the petitioner and pointed out that the petitioner of that case was an employee of the other co-accused.
Having heard both counsels, gone through the records of the case, cited judgments and in the facts and circumstances of the case, I am inclined to release the petitioner, named above, on bail, on furnishing bail bond of Rs. 20,000/- (rupees twenty thousand only) with two sureties of the like amount each to the satisfaction of learned Sessions Judge, Gumla in connection with Gumla P.S. Case No. 140 of 2022, subject to the condition that petitioner shall remain present on each and every date of trial before the Court below unless dispensed with by the learned Court below.
(Ratnaker Bhengra, J.) Sharda/