Gujarat High Court
Dhanani Afzal Salimbhai vs State Of Gujarat on 4 April, 2025
NEUTRAL CITATION
R/CR.MA/6704/2025 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 6704
of 2025
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DHANANI AFZAL SALIMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR MAUNISH T PATHAK(5892) for the Applicant(s) No. 1
MR YASH N NANAVATY(5626) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/04/2025
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11192008250036 of 2025 registered with Bavla Police Station, Ahmedabad Rural, for the offences punishable under Sections 8(c), 21(c), and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short).
3. Learned counsel for the applicant submitted that the applicant is innocent and has not committed any offence as alleged in the FIR. Merely on the basis of statement made by the co-accused, his name has been impleaded as an accused. Nothing is recovered from conscious possession of the applicant. Whatever allegations levelled against the accused persons are that Applicant is running the business of pharmacy in the name of A A distributor and having the licence under Drug and Cosmetic Act. He is Engaged in the business Page 1 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined of selling medicine and alleged cough syrup 'Codeine' came to be sold to one Safia Medical Store and in this regard letter dated 24 th January 2025 came to be issued to provide 600 bottles of the said cough syrup. Safia Medical Store has given purchase order to the AA distributor, he has purchased the goods from the Patidar Pharma Agency and the said goods was supplied. The accused No.2 used to purchase the goods regularly from his firm, which was a routine business transaction. Whatever order passed by the Safiya Medical Store, the applicant has paid the amount to the Patidar as per the invoice and thereafter, he is in business transactions and sold out to the said cough syrup to the accused No.2 after following the procedure. There is no involvement of the present applicant. He has not committed in any manner any offence. He is ready and willing to joined the investigation and cooperate the investigation.
One more argument, canvassed by the learned counsel for the applicant is that applicant is not named in the FIR. The name of Ajaz is stated, but he is not Ajaz.
In view of the above submissions made by learned counsel for the applicant, he prays this Court to allow present application by enlarging the applicant on bail.
4. Per contra, learned APP appearing for the respondent State has vehemently opposed the present application and contended that that the applicant is involved in serious offence and is named in the FIR as an accused. The applicant has supplied 600 cough syrup bottles, which is in commercial quantity. It is submitted that 'codeine' itself is 'opium derivative' as defined under Section 2(xvi)(c) and all opium derivatives are termed as manufactured drugs as defied under Section 2(xi) of the NDPS Act and therefore, codeine is a narcotic drug as defined under the NDPS Act and rigor of Section 37 would be applicable in the present case. So far applicability of Notification Page 2 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined dated 10.03.2016 is concerned, subsequent to 2016's Notification, another Notification dated 02.06.2023 is issued by the Central Government.
4.1. Learned APP has submitted that the applicant had previously filed a quashing petition on the same grounds, which was not pressed. Hence, prima facie, an offence is made out regarding the involvement of the present applicant. Furthermore, it is submitted that a huge quantity of 600 bottles of cough syrup was found without any proper authority. The applicant has fabricated documents to show that an order was received from Safiya Medical Store through Accused No. 2, but this is merely an eyewash. There were no actual transactions between Safiya Medical Store and AA Industries. These documents were subsequently created as an afterthought and amount to a mere defense. During the investigation, it was found that the present applicant is involved and he is managing the entire affairs of AA distributors. He has supplied, without any authority, the prohibited substance i.e. 'Codeine' syrup of 600 bottles in the huge quantity, which is a commercial quantity under the NDPS Act. Sufficient material is collected against the present applicant. Hence custodial in interrogation is required. The present applicant arraigned as an accused under section 8(c), 21(c) and 29 of the NDPS Act and his involvement is found to supply prohibited narcotic drugs syrup of 600 bottles. During the investigation also it reveals that neither Shahrukh nor Safia is having license. Though in the huge quantity, they kept in the possession and stored the said contraband / codeine cough syrup. In absence of valid prescription, they have stored, narcotic and psychotropic substance and during the investigation name of the present applicant was also revealed, based on the statement of co- accused namely Shahrukh initially he has tried to mislead the investigating agency and the mobile number of present applicant was given false. Subsequently his correct number, he has provided.
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Perusing the the fact that the present applicant was managing the affairs of AA distributors. He is having no any license though he was looking after the affairs of AA distributor, taking the advantage of the said facts, he has placed an order on paper in the name of Safia Medical Store. Prima facie, it appears that the said letter head is an afterthought and same is drafted with a view to create the defence and this is an eye wash and to show that he is engaged in the legitimate business. The said contraband is found alongwith the co- accused Shahrukh and the present applicant. There is direct contact with applicant and there was 38 incoming calls at night between them. He was found in constant touch of the accused No.1 - Shahrukh from 15th January 2025 to 24th January 2025 and from the whatsapp chat also, the order was placed and amount is also transferred and six box of said contraband's order being placed and the said chat is also substantiated the alleged transactions and the allegations levelled in the complaint. The present applicant is involved in the illegal activity of the narcotic and psychotropic substance and in the selling of the prohibited drugs in the pretext of drug licence. It is submitted that applicant was not doing the legitimate business. Considering the aforesaid fact, he has requested to dismiss the present application.
In view of the above submissions, learned APP requested to dismiss the present application.
5. Heard learned counsel appearing for the respective parties and perused the material placed on record.
6. It is required to be noted that in the present case, the applicant is named in the FIR. Schedule H drug codeine itself contained derivative of NDPS Act and as per the case of the applicant, he is license holder and if any breach is considered, which amounts to breach of license condition. Considering the aforesaid facts, it is Page 4 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined needless to say that for stock, sale or distribute it, license is mandatory. Even retail sale is also based on the prescription only. In absence of such prescription, stocking and selling 600 bottles of cough syrup is impermissible. Further, the quantity is of commercial in nature. Even it is also not disputed by learned Senior counsel.
6.1. Considering the fact that as per the allegations made in the complaint, the present applicant arraigned as an accused as Ajaz, but as per the case of the present applicant, he is not Ajaz, because he is 'Dhanani Afzal Salimbhai'. Even we accept the aforesaid fact, the quashing petition being Special Criminal Application No.3611 of 2025 was not pressed. Hence, prima facie, offence under Section 8(c), 21(c) and 29 of the NDPS Act is made out against the present applicant. So far as involvement part is concerned, this Court considered only role of the present applicant in the alleged offence. Perusing the record, it appears that herein alleged contraband of the 600 'codeine' bottles, which is prohibited substances under the NDPS Act, which is commercial in nature. Therefore, rigor of Section 37 of the NDPS is applicable.
So far as involvement of the present applicant is concerned, the present applicant has unauthorizedly supplied 600 bottles of codeine syrup to accused no.1. During the investigation, sufficient material is collected against the present applicant, which reveals that he is involved. It appears that there is no licence neither with the present applicant nor with the co-accused Shahrukh. He has supplied the said goods prior to that, he was found in the constant contact with accused no.1 but 38 incoming/ out-coming calls being made, prior to fateful day. Perusing the said CDR, whats-app chat and messages, it appears that the accused has asked to present applicant to provide one more licence also and thereafter, he has also received the money online and supplied 6 box (which contains 100 bottles in a box) i.e. 600 bottles of the codeine syrup. prima facie involvement of Page 5 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined the present applicant is found and custodial interrogation is required.
6.2. Perusing the record, it appears that the accused No.1 has tried to mislead Investigation Officer and name of the present applicant is found from the record, this is not a case, wherein based on the statement of co-accused, name of present applicant is revealed. Therefore, custodial interrogation is required.
7. As the offence in question is under the provisions of the NDPS Act, it is required to be mentioned that under the provisions of the NDPS Act as alleged contraband is 600 bottles of cough syrup, FSL report is produced on record. Seized contraband in the said offence is of commercial quantity, hence, it is required to be considered differently and rigor of Section 37 of the NDPS would clearly attracts. This is not a case where the Court has to consider the case of the applicant only in light of the provisions of Section 438 of the Cr.P.C, however, at the outset, it is worth to mention that under the NDPS Act, the reverse burden is on the part of the accused. In this regard, reference is required to be made upon the judgment of the Apex Court delivered in the case of Dataram Singh Vs. State of Uttar Pradesh, wherein the apex Court has observed thus:-
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences."
8. That 600 bottles of codeine syrup which is commercial quantity are recovered and as such rigor of Section 37 would be applicable in the instant case. The FIR depicts prima facie involvement of the applicant. Perusal of the FIR and other material placed on record, it reveals that total 600 bottles of cough syrup was seized from the possession of accused No.1 without any doctor's prescription and the same is worth Page 6 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined Rs.96,600/- and the same is sent by the present applicant to accused No.2 and accused No.3, which was to be delivered as per the instructions of the present applicant. Looking to the investigation papers, prima facie involvement of the applicant is found.
9. In so far the argument with respect to codeine is not covered under the NDPS Act is concerned, coordinate bench of this Court in CRMA No.5807/2023 held as under:-
"[7.1] So far as "codeine" is concerned, it is "opium derivative" as defined under Section 2 (xvi)(c), all opium derivatives are termed as manufactured drug as defined under Section 2(xi) of 'the NDPS Act'. Therefore, it satisfies the definition of ''narcotic drug' as defined under Section 2(xiv) of 'the NDPS Act', and therefore, 'Codeine' is a narcotic drug as defined under 'the NDPS Act'. However, in the year 2014 i.e. with effect from 30.04.2014, the definition of "essential narcotic drugs" vide Section 2(viiia) is prescribed which means a narcotic drug notified by the Central Government for medical and scientific use. Pursuant to insertion of the said definition, a notification dated 05.05.2015 S.O. 1181(E) came to be issued notifying for medical and scientific use the 'essential narcotic drugs, which includes codeine "to be essential narcotic drugs". However, an exception is provided, if 'Codeine' is compounded with one or more other ingredients containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice. While defining "essential narcotic drugs" an amendment in the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as 'the Rules') came to be introduced by way of third amendment adding certain definitions and inserting Chapter VA in 'the Rules', which contains Rule 52A to 52ZA. Sub-Rule (1) of Rule 52A of 'the Rules' provides that no person shall possess any 'essential narcotic drug' otherwise than in accordance with the provisions of the Rules. Sub-Rule (3) of Rule 52A provides that a registered medical practitioner is allowed to possess 'essential narcotic drug', for use in his practice but not for sale or distribution as also not more than the quantity beyond 2000 milligram. The third amendment in 'the Rules' introduced by notification dated 05.05.2015 added various definitions, including "licenced chemist", "licenced dealer", "prescription", "recognized medical institution" as also "registered medical practitioner". The said definitions also includes Rule 2(he), which defines "prescription". "Prescription" means a prescription given by a registered medical practitioner for the supply of any of the essential narcotic drugs to a patient for medical use in accordance with 'the Rules'. So any one who is dealing with 'essential narcotic drugs', which is to be provided to a patient for medical use, has to be by way of a prescription given by registered medical Page 7 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined practitioner only. The Central Government by way of notification dated 10.03.2016 vide S.O.881(E) exercising powers conferred under Section 26A of 'the Act, 1940' on the basis of recommendations of Expert Committee prohibited manufacture for sale , sale and distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine + Sodium Citrate + Menthol Syrup with immediate effect, and therefore, any fixed dose combination with 'Codeine' either of Chlorpheniramine or Sodium Citrate or Menthol Syrup would be prohibited for manufacture for sale, sale or distribution for human use. Thus, any combination of any other drug alongwith 'Codeine' even in fixed dose combination came to be prohibited since 2016, and therefore, any of the applicant could not have kept it in their possession such cough syrup containing 'Codeine' with any other drug combination thereof in the year 2022, and therefore, it is an offence under 'the NDPS Act' and in no case, it can be said that it is exempted from rigors of 'the NDPS Act' and the offence, if any, would fall under 'the Act, 1940'. Not only that, in light of the direction given by the Supreme Court in the case of Union of India Vs. Pfizer Limited reported in Civil Appeal No.22972 of 2017 de novo inquiry was carried out as to whether fixed dose combinations licenced prior to 1988 should be the subject matter of notification under Section 26A of 'the Act, 1940'. The matter came to be examined by the Expert Committee and Drugs Technical Advisory Board Central Government was satisfied that it is necessary and expedient in the public interest to regulate by way of prohibiting the manufacturer for sale, sale or distribution for human use of fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect in the country, and therefore, in supersession of
10.03.2016 notification, on the basis of recommendations of the Expert Committee and Drugs Technical Advisory Board, Central Government in exercise of powers conferred under Section 26A of 'the Act, 1940', again prohibited the manufacturer for sale, sale or distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect. Thus, "essential narcotic drug", which contains 'Codeine' as one of the ingredient in any fixed dose combination with any other drug came to be prohibited since 2016 either manufacture for sale, sale or distribution for human use, and therefore, the applicants could not have in their possession even such fixed dose combination, the manufacture for sale, sale or distribution for human use, which is prohibited by the Central Government. While introducing the definition of "essential narcotic drugs" it is regulated under 'the Act, 1940', 'the Rules' as also under 'the NDPS Act', Sub Rule (3) of Rule 65 of the Drugs and Cosmetic Rules, 1945 (hereinafter referred to as 'the Rules, 1945') provides maintaining of prescription register specially maintained for the purpose and serial number of entry in the Register shall be entered on the prescription. The particulars as mentioned in the said Rule, by licence holder in Form 20, 20A, 20B, 20F, 20G, 21, 21B should be observed by them. The supply of any drug other than those specified in the Schedule X is regulated in that manner. If Schedule H1 of 'the Rules 1945' is seen, 'Codeine' is included therein at Entry No.20. The supply of any drug falling under Page 8 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined Schedule H1 is regulated under Rule 65 of 'the Rules, 1945' directing supply of any drug other than those specified in the Schedule X would be on a prescription of a registered medical practitioner and the licence holder is supposed to record at the time of supply in a prescription register specially maintained for the purpose, the serial number entry in the Register shall also be entered in the prescription of the medical registered practitioner. Thus, without any prescription from a registered medical practitioner, the licence holder is not supposed to supply Schedule H1 drug. At the same time, maintaining prescription register by him and even writing on the prescription, the serial number of his register is to be mentioned in the prescription also. Even the licence holder in Form 20B as claimed by the applicant
- Govind Valabhai Prajapati is also supposed to follow 'the Act, 1940' as also 'the Rules, 1945' alongwith 'the NDPS Act' and 'the Rules' framed thereunder. As per the terms of his condition of licence, the licence holder is supposed to sell to a person not holding requisite licence to sell, stock or exhibit for sale or distribute the drug. Even if he himself, who has produced the licence in Form 20B is valid up to 17.11.2022 and it is place specific licence to store the said drug at the shop mentioned in the licence itself whereas the offence in the present case has come to be committed on 29.12.2022, the date on which he did not possess any such licence nor he has produced any such licence having been renewed thereafter.
[7.2] Sub-Rule (1) of Rule 52 A of 'the Rules' provides that no person can possess any "essential narcotic drug" otherwise than in accordance with the provisions of 'the Rules'. Rule 52 B provides provision regarding licenced dealer and licenced chemist obtaining licence to possess, sell, exhibit or offer for sale or distribution by retail or wholesale, "essential narcotic drug" from the competent authority. Even Transport, Transmission by post, courier, rail or road, sale is regulated as provided under Rules 52 C to 52 G of 'the Rules'. Even registered medical practitioners are also conditioned by writing prescription for supply of "essential narcotic drug" as provided under 'the Rules'. Since manufacture for sale, sale or distribution for human use of drug fixed dose combination of Chlorpheniramine + Codeine Phosphate + Menthol Syrup is prohibited by the Central Government there is no medical or scientific use thereof for the treatment of cough and cold remains. Therefore, it cannot be said that it has been established in therapeutic practice. Therefore dealing in any drug which contained 'Codeine' as ingredient, being "essential narcotic durg" is regulated under 'the NDPS Act', 'the Rules', 'the Act, 1940', 'the Rules, 1945' and any breach thereof is punishable under 'the NDPS Act'."
Thus, it is crystal clear that "essential narcotic drug" and insertion of Chapter VA in 'the Rules' and provisions made therein. Not only that, Section 54 of 'the NDPS Act' provides for presumption from possession of illicit articles unless and until contrary is proved Page 9 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined that the accused has committed an offence under 'the NDPS Act'. Further more Section 35 provides for presumption of the culpable mental state, and therefore, prima facie the applicants cannot escape the liability under 'the NDPS Act'.
10. So far the argument raised to the effect that the applicant is arraigned as accused on the basis of statement of co-accused, having no substance considering the statement and other materials. Further, the applicant having a valid license is not a ground to grant bail. There is no privy or direct nexus between the applicant and manufacturer and as the present applicant being wholesaler of medicines, on this count also, detail and thorough investigation is required to be performed in the instant case.
11. Relying upon the judgments of this Court rendered in the case of Mohmed Salim Abdul Rasid Shaikh Vs. State of Gujarat, rendered in 2001 (2) GLR 1580 as well as in the case of Dolatram Tekchand Harjani Vs. State of Gujarat, reported in 2013 (3) GLR 2133, so far investigation is concerned, statement of the co-accused is relevant and it provides the clue and for that purpose, statement of co- accused is relevant and as the serious offence is disclosed, then the Court should not exercise its jurisdiction granting anticipatory bail.
11.1. In the case of Mohammed Fasrin Vs. State (CR.MA/296/2014), the Apex Court has observed as under:
"...The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been made by the co-accused."
12. So far the second limb of argument with respect to nothing is recovered from conscious possession of the applicant is concerned, reference is required to be made upon the decision of the Apex Court Page 10 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined in the case of Union of India Vs. Md. Nawaz Khan, reported in (2021) 10 SCC 100, wherein, the Apex Court has held that "in absence of possession of the contraband on the person of the accused does not absolve it of the level of scrutiny required under Section 37(1)(b(ii) of the Act. The Hon'ble Apex Court further has been pleased to hold that, the term possession could mean physical possession with animus, custody over the prohibited substances with animus, exercise of dominion and control as a result of concealment or personal knowledge as to the existence of the contraband and the intention based on such knowledge. So far the other argument to the effect that rigor of Section 37 of the Act is not applicable is concerned, the Hon'ble Apex Court in case of Hira Singh Vs. Union of India, reported in 2020 (20) SCC 272, held that "mixture of narcotic drug and seized material /substance should be considered as a preparation in totality or on the basis of actual drug content of specified narcotic drug and seizure of mixture of narcotics drugs or Psychotropic Substances with one or more neutral substance(s), quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of offending drug, while determining "small or commercial quantity" of Narcotic Drugs or Psychotropic Substances".
Admittedly, in the instant case, quantity of cough syrup is commercial quantity and therefore, rigor of Section 37 would apply.
13. It is appropriate to refer to the judgment of the Hon'ble Apex Court in case of State of Punjab Vs. Rakesh Kumar, reported in 2019 (2) SCC 466, wherein, the Apex Court held as under:-
"8. At the outset it is essential to note the objectives of the two legislation before us, i.e., the Drugs and Cosmetics Act, 1940 and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent sub−standard drugs and to maintain high standards of medical treatment. (See Chimanlal Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC 665) The Drugs and Cosmetics Act,1940 was mainly Page 11 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined intended to curtail the menace of adulteration of drugs and also of production, manufacture, distribution and sale of spurious and sub− standard drugs. On the other hand, the N.D.P.S Act is a special law enacted by the Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances. After analyzing the objectives of both the Acts, we can safely conclude that while the Drugs and Cosmetics Act deals with drugs which are intended to be used for therapeutic or medicinal usage, on the other hand the N.D.P.S Act intends to curb and penalize the usage of drugs which are usedfor intoxication or for getting a stimulant effect.
9. At this juncture, it is also pertinent to note the relevant provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is the prohibitory clause whose violation would lead to penal consequence."
14. In view of the above, the argument made by learned counsel for the applicant that the provisions of Drugs and Cosmetics Act are only applicable. In case of breach of licence condition, provisions of NDPS Act is not applicable, is not sustainable. In view of the same, the accused cannot be permitted to continue such illegal activities in the pretext of alleged licence, which is never issued to him. Though he is having dummy licences and he is indulged in such illegal activity. The letter head of Safiya Medical also speaks volume.
15. Considering the peculiar facts and circumstances of the case as well as considering the material placed on record, it appears that the seized contraband was of 600 bottles of codeine syrup, were supplied by the applicant without any authorization. Even earlier also, in the same manner and method and adopting the 'modus', offence was committed.. It is also required to be noted that the judgment(s) relied upon by learned counsel for the applicant would not help the case of the applicant as the contraband syrup is of commercial quantity and he has not denied that he has not supplied the muddamal cough syrup to the accused No.1. Even it is an undisputed fact that earlier also, the accused was involved in such type of illegal Page 12 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined activities and had supplied such contraband substances.
16. It is appropriate to refer to the judgment of the Apex Court rendered in case of Pratibha Manchand Vs. State of Haryana, reported in AIR 2023 SC 3307, wherein the Apex Court has observed thus:-
"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
16.1. Further, keeping in mind Law laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694. Herein, I have gone through the material available against the accused very carefully and it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Honourable Supreme Court pleased to hold:
"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
16.2. It would be apposite refer the decision of the Hon'ble Apex Court in case of Anarul SK vs. The State of West Bengal passed in Petition(s) for Special Leave to Appeal (Crl.) No(s). 12621/2024, wherein it is observed that "The Grant of anticipatory bail in cases involving Narcotic Drugs and Psychotropic Substances (NDPS) is a very serious issue. We, Page 13 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined therefore, direct the State to consider as to whether it proposes to file an application for the cancellation of bail granted to the other co-accused."
16.3. At this stage, it is apposite to refer to the decision of the Hon'ble Supreme Court in the case of State of Kerala etc. vs. Rajesh etc. reported in AIR 2020 SC 721, wherein considering the provisions of Section 37(1)(b)(ii) of the NDPS Act, it has been held that since the offence involves recovery of the narcotic drug in excess of its commercial quantity, the Court is required to record its satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence and that the applicant is not likely to commit any offence while on bail and the Court is required to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for grant of bail to the accused under the NDPS Act. The contraband is found in the conscious possession of the present applicant based on intelligence. Not only that, from the railway station, contraband is recovered at the instance of present accused in presence of panch witnesses and he is caught red- handed with the conscious possession of contraband.
17. A Liberal approach in the matter of bail under the NDPS Act is uncalled for. Section 37 of the NDPS Act starts with a non- obstante clause and therefore, the provisions of Section 437/439 of the Code of Criminal Procedure would not be applicable with regard to a person accused of an offence punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity of contraband. The words "reasonable grounds" also appear in clause (i) of Page 14 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined Section 437 of Cr.P.C. but the authority given to a High Court or a Court of Session under clause (a) of Section 439 permitting release on bail of any person accused of an offence would be curtailed in view of the stringent provision of Section 37(1)(b)(ii) of the NDPS Act. The limitations prescribed under the NDPS Act on granting of bail are in addition to the limitations under Cr.P.C. or any other law for the time being in force. It is further contended that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of not guilty. With reference to the phrase "reasonable grounds for believing".
18. Moreover, other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.
19. The seriousness of cases under the NDPS Act have to be viewed like this that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in Page 15 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society,that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Special provisions under the Act.
20. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. in the case of Babua v. State of Orissa, Hon'ble Apex Court has been pleased to held that:
"3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely Page 16 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view."
21. Further, in the present case, the applicant is found in conscious possession of the contraband and therefore, considering the rigors of section 37 of the NDPS Act and the law laid down by the Hon'ble Supreme Court in the case of Bhawani Singh vs. State of Rajasthan reported in 2022 SCC OnLine SC 1991 as well as in the case of State of Meghalaya vs. Lalrintluanga Sailo and Another reported in 2024 SCC OnLine SC 1751, the applicant is not entitled to any relief from this Court.
22. In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but all other suspect/s is therefore imperative to unearth Page 17 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025 NEUTRAL CITATION R/CR.MA/6704/2025 ORDER DATED: 04/04/2025 undefined the truth. Over and above that, 'Codeine' is a derivative of opium and it is having one time addiction. The offence under 'the NDPS Act' committed by the accused not only ruins an individual but the whole family by an individual and the youth of the country as a result. It is not the case like murder of one or two or more but it is more of youth itself of the country, which cannot be tolerated.
23. Considering the question of public health and adverse effect and impact in the society, in the larger interest of justice, the Court has to struck down the balance between the personal liberty and larger interest of the society. In view of above, if the present applicant is/are protected with this order, this Court is of the considered view that if the present accused is equipped with protective order, it would obviously affect the case of the prosecution and adversely the qualitative investigation. This is not a fit case, wherein accused is falsely enraged in the offence and it appears that there is no frivolity, with a view to tarnish his image. Considering the fact that the custodial interrogation is required.
24. For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, I am not inclined to exercise discretion in favour of the applicant. Accordingly, present application is hereby dismissed. Rule is discharged. It is made clear that this Court has not delve into the merits of the matter and the views expressed in the order are prima facie only.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 18 of 18 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:28 IST 2025