Himachal Pradesh High Court
Surjeet Kumar vs State Of H.P on 17 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP (M) No. 792 of 2017
Date of Decision: 17.7.2017
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Surjeet Kumar .........Petitioner.
Versus
State of H.P. .....Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. N.S.Chandel, Advocate.
For the Respondent: Mr. M.L. Chauhan, Additional
r Advocate General.
Mr. Kapil Sharma, Assistant Director,
SFSL, present in person.
Sandeep Sharma, J (oral)
By way of present petition filed under Section 439 of the Code of Criminal Procedure, petitioner has prayed for grant of regular bail in case FIR No.351 of 2016, dated 29.12.2016, registered at Police Station, Una, District Una, H.P., under Sections 22,29-61-85 of the Narcotic Drugs & Psychotropic Substances Act ( For short ' Act') .
2. Sequel to orders dated 23.6.2017 and 10.7.2017, HC Onkar Singh No.26, Police Station, Sadar, 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 2 District Una, has come present in Court alongwith the record. Record perused and returned. Mr. M.L.Chauhan, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried .
out by the Investigating Agency.
3. Perusal of the record as well as status report reveals that police intercepted vehicle bearing No.HP-72-2935 at Una on 29.12.2016. On checking, police recovered gunny bag containing two boxes having 12000 tablets namely "lomotil". Police also recovered 20 boxes having 2880 capsules namely "Spasmo Proxyvon plus". Since, bail petitioner failed to produce any permit to keep aforesaid tablets, FIR as stated above, came to be registered under Section 22,29-61-85 of the Act. It also emerge from the record that petitioner is in judicial custody since 29th December, 2016. Respondent-State has also made available report of FSL Junga, relevant portion, whereof is reproduced as under:-
"Results of the examination LOMOTIL Various scientific tests such as physical identification, chemical and chromatographic & spectrophotometric analyses were carried out in the laboratory with the exhibit stated as Lomotil under reference, with representative & homogeneous sample. The above tests performed, indicated the presence of Diphenoxylate hydrochloride in the exhibit. On its quantitative analysis, Diphenoxylate hydrochloride was found to be 2.492 mg per tablet. The result obtained is given below.
The exhibit stated as Lomotil is a sample of Diphenoxylate hydrochloride tablets.::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 3
SPASMO PROXYVON PLUS Various scientific tests such as physical identification, chemical,l Chromatographic & spectrophotometric analyses were carried out in the .
laboratory with the exhibit stated as spasmo proxyvon plus under reference, with representative & homogeneous sample. The above tests performed, indicated the presence of Dicyclomine hydrochloride, Tramacol hydrochloride & Acetaminophen in the exhibit. The result thus obtained is given below:
The exhibit stated as Spasmo Proxyvon plus is neither a sample of Narcotic Drugs nor Psychotropic Substances as mentioned in the schedules and notifications of NDPS Act, 1985
4. r As per status report, challan against the petitioner under Section 22, 29-61-85 of the Act, stands filed in the competent court of law on 14.2.2017 and the petitioner is in judicial custody.
5. Mr. N.S.Chandel, learned counsel representing the petitioner, while referring to the report submitted by SFSL Junga, contended that drugs namely "lomotil" does not fall in the definition of manufactured drugs, as defined under Section 2(xi) of the Act. In this regard, learned counsel invited attention of this Court to the notification bearing No. S.O. 826(E), dated 14.11.1985, S.O.49(E), dated 29.1.1993 and S.O.1431(E), dated 21.6.2011, to demonstrate that preparations of Diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate does not fall under definition of manufactured drugs, as notified vide notification referred hereinabove. ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 4
6. Though, Mr. N.S.Chandel, made a serious attempt to persuade this court to conclude that psychotropic substance i.e. Diphenoxylate hydrochloride tablets allegedly recovered from the bail petitioner is of small quantity, but Mr. Kapil Sharma, .
Assistant Director, SFLS, Junga, specifically stated before this Court that Diphenoxylate hydrochloride has been found to be 2.492 mg per tablet and if such quantity is taken into consideration qua all the recovered 11940 tablets, quantity of contraband allegedly recovered from the bail petitioner comes around 29.754 grams i.e. more than small quantity and less than commercial quantity. Learned counsel further contended that only pure drug contained in the tablet is required to be taken into consideration while determining quantity of prohibited drugs i.e. Diphenoxylate hydrochloride and not the whole of the mixture contained in the tablet. Mr. Chandel, further contended that petitioner is in custody since 29th December, 2016 and more than seven month have passed and in case, it is presumed that petitioner has violated Sections 20 and 21 of the Act, even in that eventuality one year imprisonment is provided for contraband of 'small quantity'. Mr. Chandel also invited attention of this Court to judgment passed by a coordinate bench of this Court in CrMP(M) No. 432 of 2017 titled Ankush Chauhan versus State of H.P., decided on
25..4.2017 as well as in CrMP(M) No. 817 of 2016 titled Prashant Chauhan versus State of H.P. decided on 15.7.2016 to suggest that rigors of Section 37 of the Act, are not attracted in the present case.
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7. Mr. M.L.Chauhan, learned Additional Advocate General, while inviting attention of this Court to the status report as well as report submitted SFSL, as referred above, vehemently opposed the aforesaid prayer having been made by .
the learned counsel representing the petitioner, for grant of bail. Mr. Chauhan, strenuously argued that the contraband/ psychotropic substance recovered from bail petitioner falls within 'commercial quantity' and as such, no leniency can be shown while considering petitioner's prayer for grant of bail. Mr. Chauhan, further stated that as per settled law, entire material contained in the recovered contraband is required to be taken into consideration, while determining quantity of psychotropic substance. Mr. Chauhan, while placing reliance on the report of SFSL, contended that it has been clearly concluded that on quantitative analysis, Diphenoxylate hydrochloride was found to be 2.492 mg per tablet as exhibited as lomotil tablet i.e. prohibited drugs, as such, by no stretch of imagination, it can be contended that contraband/psychotropic substance recovered from the petitioner is of 'small quantity', as claimed by the learned counsel for the petitioner.
8. I have heard the learned counsel for the parties and gone through the record carefully.
9. In the instant case, as per report of SFSL, prohibited drug namely "Diphenoxylate hydrochloride" has been found to be 2.492 mg per tablet, meaning thereby quantity of prohibited drug, if taken into consideration qua 12000 tablets allegedly recovered from the petitioner, comes out to be 29.754 ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 6 grams i.e. above than small quantity and less than commercial quantity'. SFSL, while concluding that 2.492 mg Diphenoxylate hydrochloride has been found per tablet, has nowhere rendered any opinion with regard to remaining contents/mixture .
contained in the tablet namely lomotil, hence, inference can be drawn that 29.754 grams Diphenoxylate hydrochloride is present in recovered tablets.
10. Mr. Kapil Sharma, Assistant Director SFSL, categorically stated before this court that though average weight of tablet namely "lomotil" was found 63.0 mg and as such. if this weight is taken into consideration qua all recovered tablets 11940, total weight of tablets comes around 752.20 grams. Mr. Kapil Sharma, fairly stated before this court that if pure drugs i.e. Diphenoxylate hydrochloride is taken into consideration then quantity of the same qua 11940 tablets comes to be 297.54 grams, which is more than small quantity and less than commercial quantity. Though, aforesaid aspect of the matter is to be considered and examined in detail by trial Court during the course of trial, but, after having carefully perused opinion rendered by SFSL, as well as judgments rendered by the Hon'ble Full Bench in Mehboob Khan's case (supra), which has been further followed by a coordinate Bench of this Court in Ankush Chauhan's case and Prashant Chauhan's case (supra), this Court is of the view that rigors of Section 37 of the Act are not attracted in the case at hand.
11. This Court after taking note of the submissions made by Mr. Chandel, learned counsel for the petitioner that ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 7 the tablet i.e. 'lomotil' does not fall under the definition of manufactured narcotic drugs, as notified by the Government of India by way of separate notification, as referred above, carefully perused notification, referred above, wherein at Sr. No.58, it has .
been stated as under:-
" Elthy1 1-(3- Cyano-3, 3-diphenylpropy)-4 - phenylpiperidine-4-carboxylic acid ethyl ester(the international non-proprietary name of which is Diphenoxylate) and its salts and preparations, admixture, extracts or other substances containing any of these drugs except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate.
12. Careful perusal of aforesaid entry at Sr. No.58 in the notification, as referred hereinabove, clearly suggests that Diphenoxylate and its salts and preparations, admixture, extracts or other substances containing any of these drugs are manufactured narcotic drugs, but save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. Mr. Chandel, while referring to the report submitted by SFSL, contended that drugs namely Diphenoxylate hydrochloride has been found to be 2.5 mg per tablet and similarly quantity of Atropine 0.025 mg i.e. 1% of dose of Diphenoxylate hydrochloride has been also found in each tablet, meaning thereby tablet namely 'lomotil' having Diphenoxylate hydrochloride 2.5 mg does with 0.025 mg of Atropine sulphate does not fall under the definition of ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 8 manufactured narcotic drugs and as such, does not come under the preview of NDPS Act.
13. At this stage, it would be profitable to reproduce Section 2(xi) of the Act, herein:-
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"Manufactured drugs" means:-
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or
preparation which the Central
Government may, having regard to the
available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drugs;
14. Careful perusal of aforesaid provisions of law suggest that all the coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate any other narcotic substance or preparation which central government may notify in the official Gazette would be termed as manufactured drugs, but it further suggests that it will not include any narcotic substance or preparation which the central government may having regard to the available information or to a decision, if any, under any International Convention by notification in the Official Gazette, declared not to be manufactured drugs. Aforesaid provisions of law, clearly suggest that narcotic substance or preparation declared by central government by issuing notification in the official gazette shall only be deemed to be manufactured drugs save and except of coca derivatives, ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 9 medicinal cannabis, opium derivatives and poppy straw concentrate, as prescribed under Section 2(xi) of the Act. Aforesaid provisions of law i.e. section 2(xi((b), certainly suggest that narcotic substance or preparations not included in the .
notification, if any, issued by the central government declaring certain narcotic substance or preparation to be manufactured drugs shall not be considered as manufactured drugs in terms of Section 2(xi) of the Act. In the instant case, entry made at Sr. No.58 of notification, as referred above, certainly suggests that Diphenoxylate hydrochloride and its slats and preparation and admixture, extracts or other substances containing any of these drugs are to be treated as manufactured narcotic drugs save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate.
15. In the present case, as has been taken note of above, Diphenoxylate hydrochloride 2.5 mg has been found in one tablet, whereas Atropine sulphate 2.025 mg i.e 1 % of dose of Diphenoxylate hydrochloride has been found in the tablet namely lomotil. Though, this court after having carefully perused the aforesaid provisions of law as well as entry contained at Sr. No.58 of the notification, sees substantial force in the arguments of Mr. N.S.Chandel, learned counsel representing the petitioner that tablet namely lomotil does not fall under the definition of manufactured drugs, as defined under Section 2(xi) of the Act, but aforesaid aspect of the matter ::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 10 shall be considered/examined in detail by trail court during the course of trial .
16. Indisputably, investigation in the present case is complete and challan stands filed before the competent Court of .
law on 14.2.2017. This Court cannot lose sight of the fact that petitioner is in custody since 29th Decembere, 2016 and approximately seven months have passed and as such, he is entitled to be released on bail. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Petitioner is local resident of District Una and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him.
17. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;::: Downloaded on - 18/07/2017 23:58:37 :::HCHP 11
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
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18. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs.1.00 Lakh with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, with following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing r appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
19. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
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20. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.
The petition stands accordingly disposed of.
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Copy dasti.
(Sandeep Sharma), Judge.
17th July 2017
(shankar)
r to
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