Madras High Court
Mohamad Ali Jinna vs The Intelligence Officer on 17 August, 2016
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 23.02.2017 DELIVERED ON : 14.03.2017 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.R.C.No.1421 of 2016 1.Mohamad Ali Jinna S/o.Kadar Mohideen 2.Jahir Hussain S/o.Sultan 3.Syed Ibrahim S/o.Aliyar 4.Sahul Hameed S/o.Khadar Meera . Petitioners vs. The Intelligence Officer Directorate of Revenue Intelligence Chennai 600 017. (F.No.DRI/CZU/VIII/48/ENQ-1/ INT-13/2015) .Respondent Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C. praying to set aside the Charge No.4 framed by learned I Additional Special Judge for NDPS Act Cases, Chennai, in C.C.No.4 of 2016 dated 17.08.2016. For Petitioners : Mr.B.Kumar, senior counsel for Mr.R.Rajan For Respondent : Mr.N.P.Kumar, Special Public Prosecutor (NDPS cases) ***** O R D E R
This revision challenges framing of Charge No.4 by learned I Additional Special Judge for NDPS Act Cases, Chennai, in C.C.No.4 of 2016 on 17.08.2016.
2. Respondent has filed a complaint alleging commission of offences under The Narcotic Drugs and Psychotropic Substances Act, 1985 (herinafter referred to as 'Act') against petitioners/A1 to A4 and one another, such other said to be absconding.
3. The prosecution case in brief is that A1 and A2 were intercepted when they alighted a train from New Delhi at Chennai Central on 12.12.2015. On enquiry they confessed to their baggage containing Narcotic drugs. They were taken to the respondents office where a search was conducted upon them in keeping with Section 50 of the Act. Search of their baggage resulted in finding crystalline substance which tested positive for Amphetamine, a psychotropic substance. Samples were drawn. The total substance seized was 25.160 kgs. The value thereof INR 50,32,000/- in domestic market and INR 2,51,60,000/- in the international market. In a follow up action, two carton boxes containing Zopalet and Zolfresh brand tablets containing 10 mg of 'Zolpidem Tartrate' in each tablet and one zip lock cover containing Zolpidem Tartrate tablets without packing were recovered from A3 and A4. The tablet by name Zopalet was seen to be manufactured in Pakistan while Zolfresh was manufactured by a Company in India. Zolfresh was the trade mark of the Abott Group of Companies. The recovery particulars were informed as follows:
Zolfresh tablets 2819 strips with each strip having 10 Zolpidem Tablets and 168 loose tablets Zopalet tablets 1819 strips with each strip having 10 Zolpidem tables and 261 loose tablets.
in all, 46809 tablets of Zolpidem. The tablets without blister packing were found to weigh 2500 gms. The market value of those tablets was Rs.32,84,700/-.
4. A3 and A4 confessed to not holding any license or permit to possess tablets and that their possession thereof was arranged by A5, towards transporting the same to other countries. Samples were duly drawn. Cash and other articles were seized and sealed. A1 and A2 tendered voluntary statements that they had gone to Delhi via Coimbatore on 09.12.2015 and received narcotic substance at Delhi from a person instructed by A5 to effect delivery thereof at A5s office premise, the same being that wherein A3 and A4 were found in possession of the Zolpidem tablets.
5. Relevant for determination of present revision is paragraph Nos.13 and 14 of the complaint:
13. The Joint Director, Custom House Laboratory, Custom, House, Chennai, vide Report No. lab no.813 to 817/17.12.2015 dated 12/05/2015 has reported as below:
1.Report: Lab No.813 & 814 (marked as P1S1 & P2S2 of Annexure II) : Each answers the test for the presence of Pseudoephedrine Hydrochloride;
2.Report: Lab No.815 (marked as P1S1 of Annexure III) ZOPALET Tablet: Presence of Zolpidem tartrate, could not be detected;
3.Report: Lab No.816 (marked as P2S1 of Annexure III) ZOLFRESH Tablet: Answer the tests for presence of Zolpidem Tartrate;
4.Report: Lab No.817 (marked as P3S1 of Annexure III) ZOPALET Tablet: Presence of Zolpidem tartrate, could not be detected.
That Pseudoephedrine Hydrochloride has been detected in the exhibits marked as P1S1 and P2S1 of Annexure II. Zolpidem Tartrate has been detected in the exhibits marked as P2S1 of Annexure III.
It is submitted 'Pseudoephedrine Hydrochloride' is controlled substance and Zolpidem Tartrate is Psychotropic Substances (mentioned in Sl.No.109 of Schedule II of the NDPS Act, 1985), read with NDPS (Regulation of Controlled Substances) Order 1993.
14. During the course of investigation according to law, on scrutiny of documents and from the statements recorded from the person concerned, it has came to light that in the month of December 2015 at Chennai, Delhi and other places the accused A-1 to A-5 have entered into a criminal conspiracy with others known to the accused and unknown to the complainant to procure, possess, conceal, transport and attempt to illicitly export vis-a-vis smuggle out of India the seized quantity of 25.160 Kgs. of substance, the sample of which on test by Custom House Laboratory, Custom House, Chennai is reported to give positive test for the presence of Ephedrine, a controlled substance under the NDPS Act 1985 (as amended) and 28358 tablets (weighing 6.522 kg @ 0.23 gms/tablet) of Zolafresh the sample of which on test by Custom House Laboratory, Custom House, Chennai is reported to give positive test for the presence of Zolpidem, a Psychotropic substance under the NDPS Act 1985 (as amended).
6. The case is pending trial in C.C.No.4 of 2016 on the file of learned Special Judge, NDPS Cases, Chennai. Charges have been framed against the accused for offences u/s.9A r/w 29, 9A r/w 25A of the Act in respect of dealing with controlled substance and 8(c) r/w 29 of the Act, 8(c) r/w 22(c) and 8(c) r/w 28 of the Act. Challenge herein is to charge No.4 imputing offence u/s. 8(c) r/w 22(c) of the Act.
7. Heard learned senior counsel for petitioners and learned Special Public Prosecutor (NDPS cases).
8. Section 37 of the Act makes cognizable and non-bailable offences thereunder and imposes limitations on grant of bail in respect of offences u/s.19, 24 and 27-A of the Act and also for offences involving commercial quantity. The concern of petitioners is only over charge No.4 as the same as it presently stands attracts the application of Section 37 of the Act. Under charge No.4, petitioners are accused of being in possession of a commercial quantity of 'Zolpidem' punishable u/s.8(c) r/w 22(c) of the Act. Petitioners seek to inform that such charge ought to be not under Section 22(c) of the Act relating to commercial quantity but under section 22(b) of the Act relating to quantity in between small and commercial.
9. Charge No.4 framed by Court below against petitioners 3 and 4/A3 and A4 is that having knowledge of the apprehension of A1 and A2 and on instructions of A5, they proceeded to A5's office and sought to secrete the Zolfresh and Zolapet tablets as also proceeds of sale, were caught in the act by the complainant, resulting in seizure of Zolfresh tablets - 2819 strips with each strip having 10 Zolpidem Tablets and 168 loose tablets and Zopalet tablets - 1819 strips with each strip having 10 Zolpidem tables and 261 loose tablets and hence, committed offence u/s.8(c) r/w 22(c) of the Act.
10. Learned senior counsel for petitioners submitted that the prosecution had preferred Crl.M.P.No.2563 of 2016 u/s.52-A of the Act submitting that in preferring the complaint and by oversight the number of Zolfresh and Zopalet tablets mentioned as seized had been interchanged. The Chemical Analysis Report dated 09.02.2016 informed that presence of 'Zolpidem Tartrate' was not detected in Zopalet tablets and hence, the dispute was only regards the number of Zolfresh tablets seized. Under orders dated 28.09.2016, inventory was ordered. The proceedings of the Special Judge dated 30.09.2016 made clear that the total number of Zolfresh tablets only was 18415. Therefore, the Court below fell into serious error both in erroneously informing the number of Zolfresh tablets as also including the Zopalet tablets. Such error visits the accused with very serious consequences. Each Zolfresh tablet contained only 10 mgs of 'Zolpidem Tartrate', a psychotropic substance and the total weight of such substance came to 184.15 gms. Item No.238 in the table u/s.2 (viia) and (xxiiia) of the Act informed commercial quantity of Zolpidem to be 250 gms and small quantity to be 10 gms. 184.15 gms fell within the intermediate or in between quantity and hence, the charge against the accused could have been framed only u/s.8(c) r/w 22(b) of the Act and not u/s.8(c) r/w 22(c) thereof.
11. Learned senior counsel for petitioners relied on the judgment of Supreme Court in Ouseph alias Thankachan v. State of Kerala [2004 (4) SCC 446], a case wherein the accused was found in possession of 110 ampoules of buprenorphine, trade name 'Tidigesic'. 1 gm. of such psychotropic substance was specified to be the small quantity. Each ampoule was found to contain 0.3 mgs. of the psychotropic substance. Such actual content of psychotropic substance was taken into consideration in determining that the accused was in possession only of 'small quantity'. Learned senior counsel referred to paragraph No.17 of the judgment of the Division Bench of this Court in John Paul v. Union of India [W.P.No.28715 of 2015], wherein a challenge to the constitutional validity of Notification S.O.No.2941(E)/2009 dated 18.11.2009 was repudiated. Paragraph No.17 of such order reads:
17. Note No.4 inserted by the impugned Notification does not make any new substance, which is not already stipulated as a narcotic drug or psychotropic substance. The mischief sought to be avoided by the Notification is too obvious to be seen. The Law does not want persons possessing quantities of prohibited drugs in combination with other drugs to escape the graded punishments stipulated in Section 18 of the NDPS Act. The object of the Notification is to remove the mischief. Therefore, we do not think that the Notification is either unconstitutional or ultravires of the Act.
12. Learned Special Public Prosecutor contended that the case was one where Item No.239 of the table u/s.2 of the Act applied. Notification under S.O.2941(E) dated 18.11.2009 was to the effect that The quantities shown in column 5 and column 6 of the Table relating to the respective 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 salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. Learned Special Public Prosecutor also referred to the judgment of the Division Bench of this Court in John Paul v. Union of India [W.P.No.28715 of 2015] and relied on paragraph No.15 thereof. The same reads thus:
15. It is fairly conceded by the learned Senior counsel for the petitioner that the esters, ethers and salts of certain drugs as well as the isomers of certain drugs within specific designation would also come within the purview of the drug itself. It is seen from the explanation to Section 3(d) of The Patents Act, 1970 that the Legislature is empowered to identify even the salt, esters, ethers, polymorphs, metablites, pure form, particle size, isomers, mixtures of isomers as part of the same substance, unless they differ significantly in properties with regard to efficacy. Therefore, to this extent, the learned Senior counsel contended that he did not find fault with the Notification. But his primary objection is that if any one of the substances indicated in Sl.Nos.1 to 238 of the table under the Notification is possessed along with a substance that does not find a place in the list contained in the table, the weight of that substance cannot be taken together with the weight of the substance indicated in the table for the purpose of determining whether it is a 'small quantity' or a 'commercial quantity'. This according to the learned Senior counsel, would virtually make an item or substance not included in the table as an item or substance automatically included in the table.
13. Contending that the entire weight of the Zolfresh tablets seized would have to be taken into account for determining whether the accused was found in possession of psychotropic substance in commercial quantity, learned Special Public Prosecutor relied on the judgment of the Division Bench of this Court in M.Veludurain v. The State [2012 (1) LW (Crl) 70] and submitted that the seizure in the case was effected on 12.12.2015 and this Court had held that purity test need not be conducted in respect of offences committed on or after 18.11.2009. Learned Special Public Prosecutor submitted that this Court had done so following the decision of the Apex Court in Harjit Singh v. State of Punjab [2011 (4) SCC 441].
14. This Court has considered the rival submissions.
15. Section 22 of the Act reads as follows:
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 one year, 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:
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
16. As stated supra, while an offence u/s.22(c) of the Act would suffer the rigours of Section 37 of the Act in grant of bail that under 22(b) of the Act would not. The purpose sought to be achieved by petitioners is that the case against them falls not under Section 22(c) of the Act as charged but under Section 22(b) of the Act.
17. Regards Charge No.4, the prosecution case is that tablets under brand names Zopalet and Zolfresh were seized. The Chemical Analysis Report of date 09.02.2016 rules out the presence of a psychotropic substance 'Zolpidem Tartrate' in zopalet tablets. The report informed the presence of substance in the tablets bearing the name Zolfresh. Hence, the prosecution concern regards the actual number of Zolfresh tablets seized and the petition in Crl.M.P.No.2563 of 2016 seeking an inventory. Pursuant to orders therein, an inventory has been taken and the total number of Zolfresh tablets have been found to be 18415.
18. This Court is inclined to allow this revision on a consideration not canvassed before it.
19. Section 2 (xx) of the Act defines 'preparation' thus:
''preparation'', in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances.
20. Zolpidem is listed as Item No.109 in the List of Psychotropic Substances in the schedule drawn up in keeping with Section 2(xxiii) of the Act. The table drawn up in keeping with Section 2(viia) and (xxiiia) of the Act lists 'Zolpidem' as Item No.238 and informs small quantity to be 10 gms. and commercial quantity to be 250 gms. Item No.239 of such table reads as follows:
Sl.No. Name of Narcotic Drug and Psychotropic Substance (International non-proprietory name (INN)) Other non-propriety name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) 1 2 3 4 5 6
239.
Any mixture or preparation that of with or without a neutral material, of any of the above drugs.
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21. This Court would begin by informing that the opening words 'any mixture or' in Item No.239 of the table are redundant since Section 2 (xxiii) of the Act which defines 'preparation' places preparation in two distinct slots. The preparation in relation to a Narcotic Drug or Psychotropic Substance means (1) any one or more such drugs or substances in dosage form, or (2) any solution or mixture in whatsoever physical state containing one or more such drugs or substances.
It is to be noticed that the word 'or' is used disjunctively. When so understood, it will be seen that use of the asterix mark towards informing what is small or commercial quantity makes clear that the determination therein is only regards the Narcotic Drug or Psychotropic Substance forming part of the mixture as different and distinct from drug or substance in dosage form. Insertion of Note No.4 in Item No.239 under S.O.2941(E), dated 18.11.2009, only further clarifies the position. Such note says that the quantity shown as small or commercial in relation to the respective drugs shall apply to:
(1)the entire mixture or (2)any solution or (3)any one or more Narcotic Drugs or Psychotropic Substances of that particular drug in dosage form or (4)isomers, esters, ethers and salts or salts thereof, wherever existence of such substance (meaning isomers, esters, ethers, salts or salts thereof) is possible and not just its pure content. In other words, where a drug includes isomers, esters, ethers and salts of the drug or salts thereof, the same shall be added to the drug content for purpose of determining whether the drug/substance falls under small or commercial quantity.
22. The admitted prosecution case is that petitioners were found in possession of 18415 Zolfresh tablets. A reference to Current Index of Medical Specialty (CIMS) informs that Zolfresh is one amongst several tablets wherein tablets with content of Zolpedim in 5 mg or 10 mgs. are sold. In the instant case, what has been seized are 18415 Zolfresh tablets containing 10 mg. Zolpedim each. Therefore, tablets seized from petitioners are in dosage form. When so, the notification in S.O.2941(E) dated 18.11.2009 would require a determination of small or commercial quantity on the basis of the content of the psychotropic substance of that particular drug (Zolpidem) in dosage form. When so done it will be seen that petitioners were in possession of 184.15 gms. which is below the commercial quantity of 250 gms.
23. This Court finds support for its reasoning in the decision of Apex Court in Md.Sahabuddin and another v. State of Assam [Crl.A.No.1602 of 2012] relied upon by learned Special Public Prosecutor. In holding against the accused and finding them in possession of commercial quantity of codeine phosphate (listed as Item No.28 in the table), the Apex Court took into consideration the fact that each 100 ml. bottle of Phendsedyl cough syrup contained 183.15 to 189.85 mg. of codeine phosphate and each 100 ml. bottle of Recodex cough syrup contained 182.73 mg of codeine phosphate and accused were in possession of 347 cartons containing 100 bottles in each carton of 100 ml. of Phensedyl cough syrup and 102 cartons, each containing 100 bottles of 100 ml. of Recodex cough syrup and thus the very quantum of codeine phosphate in their possession, leaving out the other components of the syrup in dosage form was itself above the commercial quantity of 1 kg. As noted earlier, in Ouseph's case, the actual drug content in the ampoules of buprenorphine (tidigesic) was taken into consideration in informing the quantity to be small quantity. Ouseph's case related to occurrence before Notification in S.O.2941(E) dated 18.11.2009 while Md.Sahabuddin's case was one that arose thereafter. The consideration has remained the same. Indeed, it cannot be otherwise. If prosecution is to contend that the entire dosage is to be taken for purpose of determining whether the possession is in small or commercial quantity, the effect would be a prosecution allegation of the company/manufacturer of the drug/substance violating the provisions of the Drugs and Cosmetics Act without charging them therefor. Though unnecessary, this Court would state that reference to a drug/substance in dosage form can only be with reference to a dosage form as permissible in law.
The Criminal Revision Case shall stand allowed. Court below is directed to alter charge No.4 from one u/s.8(c) r/w 22(c) of the Act to one u/s.8(c) r/w 22(b) thereof.
14.03.2017 Note to office:
Issue order copy by 15.03.2017 Index:yes Internet:yes gm To The I Additional Special Judge for NDPS Act Cases, Chennai.
C.T.SELVAM, J gm Pre-delivery order in Crl.R.C.No.1421 of 2016 14.03.2017 http://www.judis.nic.in