Punjab-Haryana High Court
Mukhtiar Singh @ Bhola vs State Of Punjab on 4 December, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRM M-22337 of 2012 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM M-22337 of 2012 (O&M)
Date of Decision: December 4, 2012
Mukhtiar Singh @ Bhola
.....Petitioner
Vs.
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. D.S. Pheruman, Advocate
for the petitioner.
Mr. A.S. Jattana, Addl.A.G., Punjab.
-.-
M.M.S. BEDI, J.
Petitioner seeks the concession of regular bail in a case of recovery of 2300 tablets of microlit. The sample, on chemical examination was found to contain "Diphenoxylate Hydro Chloride" besides "Atropine Sulphate". Every tablet weighing 0.75 gram was found to contain Diphenoxylate Hydrochloride to the extent of 2.3 mg per tablet.
Mr.D.S.Pheruman, learned counsel for the petitioner has vehemently contended that the petitioner is entitled to concession of regular CRM M-22337 of 2012 (O&M) [2] bail as petitioner cannot be said to have committed any offence under NDPS Act as the drug is not covered under the provisions of the said Act. He has also argued that the petitioner would be entitled to be exempted in the light of notification of the Central Government No. 826 (E) dated November 14, 1985 and SO-40 (E) dated January 29, 1993. In the said notification, "Diphenoxylate" Salt has been mentioned at Sr. No.58. He has argued that as per the abovesaid notification, if the concentration of Diphenoxylate salt or any other extract is less than 2.5 mg then it is exempted and does not stand covered under the NDPS Act. It is urged by Mr.Pheruman that as per report of Chemical examiner, "Aassy of Diphenoxylate Hydrochloride is 2.3 mg/ tablet" hence it does not fall under the NDPS Act.
Learned counsel for the State has argued that vide notification dated November 18, 2009 issued by Ministry of Finance under Clause (vii
a) and (xxiii a) of Section 2 of the NDPS Act, the entire mixture of any or more of Narcotic Drugs or Psychotropic Substance of that particular drug in dosage form or isomers, esters, ethers and salts of the drugs is to be seen while determining commercial, non-commercial or small quantities under the Act.
I have heard learned counsel for the petitioner and considered his argument to appreciate whether a person found in possession of Narcotic Drugs or Psychotropic Substance containing Diphenoxylate and its salts, preparations, admixture, extracts and other substances containing less than 2.5 mg of Diphenoxylate per dosage unit and quantity of Atropine Sulphate CRM M-22337 of 2012 (O&M) [3] equivalent to at least 1% of the dose of Diphenoxylate irrespective of the total weight of the contents of said salts in the recovery effected cannot be said to have committed any offence under the NDPS Act.
Learned counsel has placed reliance on the judgment of Manjit Singh Vs. State of Punjab, 2011 (1) RCR (Crl.) 907 wherein a licensed Chemist running a chemist shop having a valid drug licence was found in possession of tablets, including 5000 tablets of microlit. In that case, the matter was sent to the Committee constituted by the State Government. Following the opinion of Drug Inspector, District Tarn Taran based upon notification No.11/85 dated November 14, 1985, SO.826 (E) that Diphenoxylate falls at Sr. No.58 of the said notification, mentioning that all preparations containing per dosage Unit not more than 2.5 mg of Diphenoxylate included as base is exempt from NDPS and that the provisions of NDPS Act are not attracted, the High Court had quashed the FIR observing that offence, if any, was made out under Section 18 (c) of the Drugs and Cosmetics Act being, in violation of Rule 65 of the Drugs and Cosmetics Rules. The said judgment was again followed in the case of Kismat Singh Vs. State of Punjab, 2012 (2) RCR (Crl.)329, holding that the Drugs containing psychotropic substance if recovered from the Chemist fall under Schedule I of NDPS Act but the prosecution could be launched under the Drugs and Cosmetics Act. In Kashmir Singh Vs. State of Punjab, 2012 (1) RCR (Crl.) 684, 100 injections of G-Norphine and 1000 tablets of phenotil were found in possession of a person without a CRM M-22337 of 2012 (O&M) [4] licence containing Diphenoxylate Hydrochloride (2.5 mg), Atropine (0.025) Sulphate and Buprenorphine (0.29) were found in injections and tablets. The FIR was quashed on the ground that Diphenoxylate recovered being not more than 2.5 mg per dosage and quantity of Atropine Sulphate not equivalent to 1% dosages of Diphenoxylate, the contraband would not come under the definition of manufactured drug. Buprenorphine found was held to be not a psychotropic substance. The order framing charges under Section 21 of the NDPS Act was set aside.
For appreciation of the contentions of learned counsel for the petitioner, a reference is required to be made to Sections 21 and 22 of the NDPS Act, 1985. NDSP Act, 1985 is a consolidated Act by virtue of which laws regarding Narcotic Drugs and Psychotropic Substances were amended to make stringent provisions for control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances to provide for the forfeiture of property derived from, or used in, illicit traffic in Narcotic Drugs and Psychotropic Substance, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substance and for the matters connected therewith. Section 21 provides punishment for contravention in relation to manufactured drugs and preparations and Section 22 provides for punishment for contravention in relation to psychotropic substances. Section 21 and Section 22 of the Act providing punishment for contraventions in relation to manufactured drugs and psychotropic substance are reproduced hereunder:-
CRM M-22337 of 2012 (O&M) [5]
"Section 21: Punishment for contravention in
relation to manufactured drugs and preparations:-
Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;
CRM M-22337 of 2012 (O&M) [6] Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
Section 22.: Punishment for contravention in relation to psychotropic substances:- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State, or uses any psychotropic substance shall be punishable
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable CRM M-22337 of 2012 (O&M) [7] to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." Section 2 (xi) defines manufactured drugs as follows:-
"2 (xi) "manufactured drug" 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 not to be a manufactured drug;
but does not include any 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 not to be a manufactured drug;"
Section 2 (xiv) of the Act defines Narcotic Drug as follows:-
CRM M-22337 of 2012 (O&M) [8] "2 (xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;"
Section 2 (x) of the Act defines manufacture, which reads as under:-
"2 (x) "manufacture", in relation to narcotic drugs or psychotropic substances, includes- (1) all processes other than production by which such drugs or substances may be obtained; (2) refining of such drugs or substances; (3) transformation of such drugs or substances;
and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances;".
A perusal of the definitions of Narcotic Drug, manufactured drugs and term manufacture indicates that any Narcotic substance or preparation declared to be manufactured drug by notification in the official gazette with regard to the available information as to its nature or to a decision under any International Convention would be a manufactured drug and the exception would be any Narcotic Substance or preparation declared not to be a manufactured drug. The sole criteria to determine whether a CRM M-22337 of 2012 (O&M) [9] particular good is a manufactured drug, is the subject of the notification issued by the Central Government.
So far as Psychotropic Substance is concerned, it has been defined in Section 2 (xxiii) which reads as follows:-
"Section 2 (xxiii): "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule;".
Section 3 of the Act gives powers to the Central Government to add or omit from the list of Psychotropic Substances by a notification in official gazette. Section 3 of the Act reads as follows:-
3. Power to add to or omit from the list of psychotropic substances-- The Central Government may, if satisfied that it is necessary or expedient so to do on the basis of-
(a) the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or natural material or any salt or preparation of such substance or material; and CRM M-22337 of 2012 (O&M) [10]
(b) the modifications or provisions (if any) which have been made to, or in any International Convention with respect to such substance, natural material or salt or preparation of such substance or material, by notification in the Official Gazette, add to, or, as the case may be, omit from, the list of psychotropic substances specified in the Schedule such substance or natural material or salt or preparation of such substance or material."
Whether a particular substance, salt, preparation or mixture is Narcotic Drug or Psychotropic Substance depends upon the decision of the Central Government expressed in the notification issued.
So far as the commercial quantity or small quantity in relation to Narcotic Drug and Psychotropic Substance is concerned, the same is also governed by the notification of the Central Government. In this context, the definitions of commercial quantity under Section 2 (vii a) (commercial quantity) and Section 2 (xxiii a) (small quantity) are reproduced hereunder:-
"2 (viia) "Commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette; 2 (xxiii a) "small quantity", in relation to narcotic drugs and psychotropic substances, CRM M-22337 of 2012 (O&M) [11] means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"
A perusal of the above said definitions of commercial quantity and small quantity of narcotic drugs and psychotropic substances, clearly depicts that it is the quantity specified by the Central Government by notification in the official gazette which would determine whether a particular quantity in possession of a person would be commercial or small quantity. The relevant notification issued by the Central Government pertaining to narcotic substances and preparations to be manufactured drugs are S.O.826 (E) dated November 14, 1985, printed in Gazette of India, Extraordinary, Part II, Section 3 sub-section (ii) dated November 14, 1985. Said notification reads as follows:-
"S.O.826 (E).--In exercise of the powers conferred by sub-clause (b) of clause (xi) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declares the following narcotic substances and preparations to be manufactured drugs, namely:-
1 to 57. xxxx xxx xxx
58. Ethyl 1-(3-Cyano-3, 3-diphenylproply)-4-
phenylpiperidine-4-carboxylic acid ethyl ester (the CRM M-22337 of 2012 (O&M) [12] international non-proprietary name of which is Diphenoxylate), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations of diphenoxylate containing, per dosage unit, not more than 2.5 mg of diphenoxylate calculated as base, and a quantity of atropine sulphate equivalent to at least one per cent of the dose of diphenoxylate.
59 to 88. xxx xxx xxx"
Thereafter vide notification No. S.O.1055 (E) dated October 19, 2001, the quantities in relation to Narcotic Drugs and Psychotropic Substances were specified pertaining to the Narcotic Drugs and Psychotropic Substances mentioned in column No.2 to column No.4. The relevant portion of the notification dated October 19, 2001 pertaining to the salt diphenoxylate is reproduced as under:-
"S.O.1055 (E). dated 19.10.2001:- In exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527 (E) dated 16th July, 1996, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies CRM M-22337 of 2012 (O&M) [13] the quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug and psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said table, as the small quantity and commercial quantity respectively for the purposes of the said clauses of the section.
TABLE (See sub-clause (viia) and (xxiiia) of Section 2 of the Act) S.No Name of the Other Chemical Name Small Commerc . Narcotic Drug non- quant ial and propri ity (in quantity Psychotropic etary gm.) (in Substance name gm./kg.) (International non-proprietary name (INN))
1. 2. 3. 4. 5. 6.
1 to XXX XXX XXX 43
44. Diphenoxylate 1-(3-cyano-3, 3- 2 50 gm.
diphenylprophyl)-
4-phenylpiperidine-
4-carboxylic acid
ethyl ester
CRM M-22337 of 2012 (O&M) [14]
45 to XXX XXX XXX"
239
A perusal of the above notification prescribing small and commercial quantity pertaining to diphenoxylate indicates that diphenoxylate has been notified as falling under Narcotic Drug by notification dated October 19, 2001.
Vide another notification No.S.O. 2941(E) dated November 18, 2009, the notification No.1055 (E) dated October 19, 2001 was amended incorporating that quantities shown in column 5 and column 6. of the Table relating to 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 their salts, wherever existence of such substance is possible and not just its pure drug content. The notification dated November 18, 2009 is reproduced hereunder:-
"MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 18th November 2009.
S.O. 2941 (E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the CRM M-22337 of 2012 (O&M) [15] Central Government, hereby makes the following amendment in the Notification S.O. 1055 (E), dated 19th October 2001, namely:-
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 drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drug 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."
(F.No. 662/33/2008-NC-1) Vimla Bakshi, Under Secy."
In view of the notification dated November 18, 2009, there is no force in the contention of learned counsel for the petitioner as the petitioner was found in possession of tablets in which diphenoxylate contained per dosages unit was less than 2.5 mg. The petitioner would not fall within the exception to absolve him of the liability of having been found in possession of a Narcotic Drug. It cannot be said that petitioner was entitled to carry 2300 tablets of microlit because the diphenoxylate CRM M-22337 of 2012 (O&M) [16] contained in the tablets per dosages unit was less than 2.5 mg. of diphenoxylate calculated as base.
In view of the notification dated November 18, 2009, it is the total quantity of the substance which is to be seen for the purpose of determining whether the petitioner was in possession of small or commercial quantity of the Narcotic Drug. Since a common notification pertaining to Narcotic Drug and Psychotropic Substance has been issued on October 19, 2001 vide S.O. No. 1055 (E) and November 18, 2009 vide S.O. No. 2941 (E), it will be relevant to refer to Rule 66 of the NDPS Rules, 1985 which deals with possession of Psychotropic Substance without prescription. Vide notification Nos. G.S.R.639 (E) dated October 13, 2006 and G.S.R.2 (E) dated January 1, 2008, a proviso was added to Rule 66 (2) that where Psychotropic Substance is in possession of an individual for his personal medical use, the quantity thereof shall not exceed one hundred dosages units to three hundred dosages units at a time. The said provision is contained in Section 66 falling under Chapter VII of the Narcotic Drug and Psychotropic Substances Rules, 1985. There is no similar provision made under Chapter V pertaining to Manufactured Drugs. The provisions of Rule 66 of the Rules pertaining to Psychotropic Drugs, can at the most be applied to Narcotic Drugs. The petitioner having been found in possession of diphenoxylate salt in commercial quantity, as per the notifications issued by the Government, is covered by the provisions of Section 37 of the NDPS Act. As such he cannot be said to be prima facie not guilty of the offence of CRM M-22337 of 2012 (O&M) [17] having been found in possession of Narcotic Drug. It can also not be presumed that he is not likely to commit the similar offence again in case he is released on bail. It is also not out of place to observe here that vide judgment in Vinod Kumar Vs. State of Punjab, CRM M-9327 of 2012, decided on June 1, 2012, it has been held that whole contraband seized has to be considered in view of notification dated October 19, 2001 for the purpose of determining the liability of a person in possession of Narcotic Drug and Psychotropic Substance after November 17, 2009 and that there is no necessity to conduct pure content test to ascertain the exact quantity of Narcotic Drug/ Psychotropic Substance and manufactured drug. Following the said judgment in Parmanand Vs. State of Haryana and others, CRM M-33959 of 2012 decided on November 2, 2012, a Coordinate Bench of this Court had dismissed the petition of a Chemist who was found in possession of manufactured drugs without valid licence issued under the NDPS Act.
In view of the above circumstances, no ground is made out for grant of bail to the petitioner.
Dismissed.
December 4 , 2012 (M.M.S.BEDI) sanjay JUDGE