Himachal Pradesh High Court
Surendr Singh vs State on 31 August, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 31st DAY OF AUGUST 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No. 1514 of 2021
Between:-
SURENDR SINGH
S/O SH. MOHAN SINGH
R/O VILLAGE BAROTIWALA,
POST OFFICE SHIVPUR,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
AGED 29 YEARS
PRESENTLY LODGED IN MODEL CENTRAL JAIL,
NAHAN, DISTT. SIRMOUR, H.P.
.....PETITIONER
(BY SH. RAKESH CHAUHAN, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH .....RESPONDENT
(BY SMT. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL,
WITH SMT. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL
AND SH. SHRIYEK SHARDA,
SENIOR ASSISTANT ADVOCATE GENERAL
ASI HEM PARKASH,
POLICE STATION, NAHAN,
DISTT. SIRMOUR IN PERSON)
_______________________________________________________
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2
This petition coming on for orders this day, the
.
Court passed the following:
ORDER
The petitioner seeks regular bail in FIR No. 6/2021, dated 12.1.2021, registered under Sections 21 and 29 of Narcotics Drugs and Psychotropic Substances Act (in short 'NDPS Act') at Police Station, Nahan, District Sirmour, H.P.
2. As per prosecution case, a police party was on patrol duty on 11.1.2021 near 'Katasan', District Sirmour. At 10:05 P.M., it received a secret information about a white coloured Swift car bearing No. HP-17C-2466 coming towards Nahan from Panta Sahib side. The vehicle was stated to have two occupants. It was further informed that the search of this vehicle, which was about to cross 'Katasan' could result in recovery of a large quantity of bottles containing prohibited narcotic substance. The information was reliable, therefore, the procedure contemplated Section 42 of the NDPS Act was complied with. Two persons who were coming out from Katasan Devi Temple were requested and associated as independent witnesses. At around 10:30 P.M., the vehicle in question came ::: Downloaded on - 31/01/2022 22:58:57 :::CIS 3 from Paonta Sahib side. It was signalled to stop. The vehicle had two occupants. On questioning, the driver of the vehicle .
disclosed his name as Surender Singh (petitioner). The other person occupying the adjacent seat gave his name as Mandeep Singh. After complying with the prescribed procedure, search of the vehicle was carried out. From a bag kept along side marked 'Bolirex' r to Mandeep Singh's feet, 15 plastic bottles each having 100 ml syrup were recovered. All the recovered bottles had Codeine Phosphate, a manufactured drug prohibited under the NDPS Act. The occupants of the vehicle could not produce any licence/permit for carrying these bottles.
The patrol party also deemed it fit to carry out personal search of the occupants of the vehicle. As per their request, the personal search was carried out in presence of Additional Superintendent of Police. Nothing incriminating was recovered during personal search. Seizure of 15 bottles of Codeine Phosphate led to registration of the FIR in question.
3. As per status report, during investigation, the petitioner statedly disclosed that he and Mandeep Singh had purchased 16/17 bottles from Amit Medical Store, Sailakui Sahaspur (Uttrakhand). A bottle each was consumed by the ::: Downloaded on - 31/01/2022 22:58:57 :::CIS 4 petitioner and his accomplice Mandeep Singh. Remaining 15 bottles were being carried by them to one Shibu @ Savi. To the .
similar effect was the disclosure statedly made by Mandeep Singh. As per the status report, the investigating agency went to Sailakui Sahaspur, however, Amit Medical Store could not be located there. The shop identified by the petitioner was carrying the board of Bhuvneshwari Medical Store. No bottle of Bolirex syrup was found in that medical store.
As per the report of State Forensic Science Laboratory, Junga, Codeine Phosphate was present in seized Bolirex cough syrup. The total weight of the seized syrup was 1.849 kg.
4. Learned counsel for the petitioner submitted that the petitioner is not guilty of the offence alleged against him. He has been falsely implicated in the FIR. Learned counsel further submitted that neutral quantity is not to be included while determining the 'small' or 'commercial' quantity of the manufactured drug. He placed reliance upon a judgment passed by learned Single Judge of Delhi Court in bail application No. 645/2020, titled Iqbal Singh versus State, decided on 31.07.2020 to contend that a drug which is ::: Downloaded on - 31/01/2022 22:58:57 :::CIS 5 manufactured but falls outside the scope of the definition of a 'manufactured drug' under the NDPS Act on account of the .
component of offending material being below the prescribed threshold, cannot be construed as manufactured drug by dissecting its ingredients and considering them in isolation.
Opposing the bail plea, learned Senior Assistant Advocate General, submitted that the quantity of neutral substance cannot be excluded for the purpose of determining the small or commercial quantity of Narcotic Substance. In this regard, he placed reliance upon a judgment passed by the Hon'ble Apex Court in AIR 2020 Supreme Court 3255, titled Hira Singh and another vs. Union of India and another. The quantity recovered from the possession of the petitioner and his accomplice was commercial in terms of provisions of the NDPS Act, therefore, rigors of Section 37 of NDPS Act would be attracted. The petitioner has not been able to satisfy the twin conditions laid down in Section 37 of the NDPS Act, therefore, he is not entitled for grant of bail.
5. Hon'ble Apex Court in Hira Singh and another v.
Union of India, reported in AIR 2020 Supreme Court 3255, ::: Downloaded on - 31/01/2022 22:58:57 :::CIS 6 held as under:
"10. In view of the above and for the reasons stated above, .
Reference is answered as under:
(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the 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;
(II). 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 consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
(III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
(IV). Challenge to Notification dated 18.11.2009 adding "Note 4"
to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."
In respect of the manufactured drug, it was specifically held in paragraph-8.4 of the above judgment as under:-
::: Downloaded on - 31/01/2022 22:58:57 :::CIS 7"8.4. 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 manner, then and then only, the objects and purpose of NDPS Act would be achieved. Any other intention to defeat the object and purpose of enactment of NDPS Act viz. to Act is deterrent."
From reading of paragraphs 10 and 8.4, it is clear that Apex Court has held that total weight of manufactured drug or preparation including the neutral material is required to be considered while determining small or commercial quantity. No distinction is made out for manufactured drugs with a small percentage of narcotic substance. The judgment passed by learned Single Judge of the Delhi High Court in Iqbal Singh's case supra was considered in Bail Application No. 1136 of 2021, titled Mohd. Ahsan vs. Customs, decided on 25.6.2021.
Paragraph 21 of the judgment in Mohd. Ahsan's case supra, expresses that the judgment rendered in Iqbal Singh's case was contrary to the plain reading of the judgment of the Hon'ble Apex Court, in Hira Singh's case. The matter has been referred for consideration by a Larger Bench on following three aspects:
::: Downloaded on - 31/01/2022 22:58:57 :::CIS 8"22. The following questions therefore are required to be considered by a larger Bench of this Court :
.
a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?
b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?
c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?"
In light of the pronouncement of Hon'ble Apex Court in Hira Singh's case supra, more particularly, in paragraphs-8.4 and 10 thereof, at present it cannot be said that the neutral quantity is to be excluded while determining the small or commercial quantity of the manufactured drug.
As per status report, from the joint possession of the petitioner and that of his accomplice, 15 bottles of Codeine Phosphate weighing 1.849 kg. were recovered. The weight falls under the commercial quantity notified under the NDPS Act.
Therefore, rigors of Section 37 of NDPS Act get attracted. The ::: Downloaded on - 31/01/2022 22:58:57 :::CIS 9 petitioner has not been able to satisfy the twin conditions of Section 37 of the NDPS Act. Accordingly, this petition fails and .
is dismissed reserving liberty to the petitioner to file the petition afresh in accordance with law at an appropriate stage.
It is clarified that observations made above are confined only to the adjudication of petition and shall have no decide the matter r withoutto effect on the merits of the matter.
being
Learned trial Court shall
influenced by above
observations.
Petition stands disposed of in the aforesaid terms.
Jyotsna Rewal Dua Judge 31st August, 2021 (vs) ::: Downloaded on - 31/01/2022 22:58:57 :::CIS