Madhya Pradesh High Court
Neeraj Bhardwaj vs The State Of Madhya Pradesh on 28 July, 2015
M.Cr.C.Nos. 12192/2015, 12199/2015, 12208/2015
and 12210/2015
28/07/2015
Shri Manish Datt, learned senior counsel with Shri
Yogendra Soni, learned counsel for the applicants.
Shri Vijay Kumar Pandey, learned Panel Lawyer for the
respondent/State.
All these cases have emerged out of one and the same crime number of the same Police Station, moreover, of the same impugned bail order dated 15.07.15 passed by the Special Judge, Katni under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'Act') in bail application No. UR/2015 Neeraj Bhardwaj and others Vs. State of M.P., hence, they are heard together and are being dealt with this common order. Heard arguments.
Perused case diary and material on record. These are the first bail applications filed by the applicants under Section 439 of the Cr.P.C. in connection with Crime No. 165/2015 registered at Police Station Kuthala District Katni against them and co-accused persons, namely, Virendra Tiwari, Vinesh Kumar Yadav and Umapati Mishr for the offences punishable under Sections 8 r/w 21 and 22 of the Act and 420, 467, 468, 471 and 120-B of the IPC.
It is the case of prosecution that upon a tip-off, on 25.04.2015 Vipin Singh, the S.H.O. of Police Station, Kuthala searched a truck bearing registration No. WB-23 B-8591 (for short the 'truck') and found therein 37200 bottles of Phensedyl Cough Linctus Syrup (for short the 'drug') kept in 372 cartoons. As per the label of composition being stuck upon each bottle, it contains 100 ml. preparations with 10 mg. Codeine Phosphate a salt of codeine which is a derivative of opium, hence, codeine phosphate is a narcotic substance. At the time of search of the truck, co-accused Vinesh Kumar Yadav was the driver of it and co-accused Virendra Kumar Tiwari was occupant of it. Vipin Singh demanded licence/permit from the aforesaid accused persons for transporting the drugs in bulk, but they failed to produce the same. Thereupon, he seized the truck and registered the case against them under the Act. In the course of investigation, the police found that the consigner of the drug is M/s. Hind Medical Agency, Roopali Complex Jabalpur and the consignee is M/s. Maa Gouri Enterprises, New Medicine Market, Lucknow of which Kalka Singh is the proprietor. On being interrogated, he told the police that he had already surrendered his drug licence on 19.01.15 and he had not placed any orders for the supply of the drug to M/s Hind Medical Agency. Thereafter, the police found that the applicants have prepared forged supply orders in the name of M/s. Maa Gouri Enterprises. In fact, the drug was to be smuggled into the neighboring countries and to be sold in local markets on the sly, where a bottle of the drug fetches many times more money than the price fixed by the company, because the drug is consumed by the addicts as it contains Codeine Phosphate, which is an intoxicative substance.
Learned counsel for the applicants submits that applicant Deepak Ahooja is in custody since 01.07.2015 and the remaining three applicants are in custody since 13.07.2015. It is also submitted by him that all the applicants are having valid licences under the provisions of the Drugs and Cosmetic Act, 1940 and the proprietor of M/s. Maa Gouri Enterprises has also the valid licence from 05.04.13 to 14.05.18, the details thereof are given in their bail applications. It is also submitted by him that Kalka Singh has placed the orders of supply of drug to the applicants of various quantity and the applicants have sent the drugs in the joint name of M/s. Hind Medical Agency as consigner of which applicant Arvind Chandwani is the proprietor. It is also submitted by him that Kalka Singh have made the payment of the drug by cheques. Thus, the applicants have sent the drug in their course of business without knowing the fact that Kalka Singh would sell the drug to the addicts on high premium. It is also submitted by him that Kalka Singh has made a false case diary statement to the police as to surrender of his licence in order to save himself from being made an accused of the case. Having referred to the circular letter Nos. X-11029/27-D, dated 26.10.2005 and X-11029/09-D, dated 01.03.2009 issued by the Drugs Controller General India to all the State Drugs Controllers and notifications No. G.S.R. 588 (E), dated 30.08.2013 and a letter dated 15.10.2012 issued by the Pharmaceutical Company Abbott, the manufacturer of the drug to its trade partners, he contends that the drug is not a Narcotic Drug as the concentration of Codeine Phosphate in it is mere 0.20% as compared to permissible limit to 2.5. Hence, the drug comes under the Schedule H-1 of the Drugs and Cosmetics Rules 1940. Consequently, the stocking and sale of the drug do not attract the provisions of the Act and the Rules 1985 thereunder. In support of this contention, learned counsel has also placed reliance upon the decision rendered in the matters of Amrik Singh Vs. State of Punjab (1996) CRI. L.J. 3329 (P. & H. High Court) and Ashok Kumar Vs. Union of India (date of order 15.10.14 passed in Criminal Appeal No.2976/2014 by Hon'ble Shri Justice Ajai Lamba of the Allahabad High Court). It is noteworthy to mention here that vide the decisions it has been held that the sale and stocking of Phensedyl Cough Syrup by a licence stockist would not constitute an offence under the Act. It is also submitted by him that this Court has granted regular bail to co- accused Vinesh Kumar Yadav and Virendra Kumar Tiwari and the court below has granted regular bail to co- accused Umapati Mishr. Lastly, it is also submitted by him that the applicants do not have any criminal antecedents and they would co-operate the Investigating Officer of the case for further investigation of the case. Upon these submissions, learned counsel prays for grant of bail to the applicants.
Learned Panel Lawyer has opposed the prayer. On due consideration of the facts and circumstances of the case, the submissions raised on behalf of the parties by their counsel, period of validity of drug licences of the applicants and Kalka Singh, bank statements of the applicants with regard to the payment of price of drug by Kalka Singh to them, non-production of proof of surrender of the licence of Kalka Singh, by the police, the aforesaid notifications and the decisions, but without expressing any opinion on merits of the case, I am of the view that it is a fit case for grant of bail to the applicants. Hence, the applications are allowed. It is ordered that applicant Arvind Chandwani, Deepak Ahooja, Neeraj Bhardwaj and Girish Ahooja be released on bail on their furnishing 'each' a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the same amount to the satisfaction of the Court concerned for their appearance on all such dates as may be fixed by it in this regard. They shall abide by the conditions enumerated in Section 437(3) of the Cr.P.C. In case of bail jump, the Court concerned will have power to cancel the applicants' bail. Certified copy as per rules.
(RAJENDRA MAHAJAN) JUDGE sp/-